NATIONAL PROSECUTION AUTHORITY AND THE ADVICE TO THE POLICE
Listening to what advice the learned prosecutors gave to the IG on how to charge Jay Jay PF cadre who beat up police officers and stole money at Lusaka central police station last month makes one understand why we have such a high fail rate at ZIALE. Or better still why we have broken a record on a number of Nolles handed out in criminal cases since independence.
Was this advice given to get Jay Banda off the hook, or was it in the best interest of justice?
Aggravated Robbery according to Sec 294(1) CAP 87 says,” any person who, being armed with any offensive weapon or instrument, or being together with one person or more, steals anything, and, at or immediately before or immediately after the time of stealing he/she uses, or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of a felony of aggravated Robbery and liable upon conviction to life imprisonment or dearth (2) (a) where the offensive weapon is a firearm.
Sec 295 CAP 87 Aggravated assault on the other hand says,”any person who, being armed with any offensive weapon or instrument, or being together with one person or more, assaults any person with intent to steal anything, is guilty of a felony and is liable upon conviction to imprisonment for a period of not less than 10 years and not exceeding twenty years.
Why did these so called learned, yet not so learned prosecutors advise the IG to go for Sec 295 CAP 87? If you look carefully at these two offences one (294) has person or property and (295) has only a person. The reason behind this charge was to triangulate the charge to an individual. Reason being, an individual can be persuaded to drop the charge where as property may not.
This offence of aggravated Robbery was committed against Lusaka Central targeting the evidence room. Therefore, the charge of aggravated Robbery was avoided, because that would mean no way out for Emmanuel Banda commonly known as Jay Jay or it would have been for the infamous nolle.
Change the charge and bring in an assault of the guard and use it so the guard can withdraw the charge and jay jay is free is the game PF leaders have played on this serious case.
Now here is a catch, the attack was on Central Police. If a police officer was injured in the process, that would have proved use of violence (resistance to retain….) which is an ingredient in aggravated Robbery. The fact that the suspects were armed with firearms, the penalty would have been death.
Fellow citizens, are you seeing what I am seeing?
Now coming back to the law, Jay Jay would have been charged with aggravated Robbery. If as the prosecutors contend, that there was not enough evidence. A good prosecutor would have gone with the capital offence and moved the court to consider convicting on the alternative charge.
After all, the law considers that no one shall be acquitted merely on ground of a wrong charge. The court is allowed to acquit on a wrong charge and convict in the alternative charge. Therefore, change of a charge should have been considered during submission at the close of the case awaiting judgement.
The officer who got injured was, or is not the owner of Lusaka central. He or she was just like a property at the station. I therefore conclude that the case is fixed in favor of Jay Jay. The officer will definitely drop the charge as he will have no muscle to fight a powerful PF cadre like Jay Jay who reports direct to Edgar Lungu and Steven Kampyongo.
All the plan was surrender yourself and we will protect you using our positions, this is why he didn’t even spend a night in police custody.
Sikaile Sikaile Good Governance and Human Rights Activist