Photographing “killer” Cop with a firearm does not amount to a confession – Court rules
HIGH Court judge Egispo Mwansa has admitted into evidence the photographic album depicting slain prosecutor Nsama Nsama and Joseph Kaunda’s alleged killer Fanwell Nyundu with an AK47 rifle during an identification exercise that was conducted to ascertain the specific weapon which was used to murder the two.
He said photographing the officer with a firearm during the identification of the weapon used in the extrajudicial killing of Nsama and Kaunda does not amount to an admission of guilt.
In this matter Nyundu in a checkered shirt is alleged to have shot dead Nsama and Kaunda on December 23, 2020 when he and other police officers attempted to disperse UPND members who had gathered in the vicinity of force headquarters to offer solidarity to President Hakainde Hichilema who was summoned by the police.
President Hichilema who was the leader of the opposition UPND then was being questioned over a farm he acquired in Kalomo Southern province many years ago.
The Court had conducted a trial within trial in Nyundu’s murder case after his lawyers prevented a forensic pathologist detective inspector Marcel Mulenga from submitting a photographic album into evidence, bordering on the identification of the firearm that was used in the killing.
Willis Muhanga who is representing Nyundu argued that the photographing of police officers with firearms amounted to a confession statement which was not voluntary.
State advocate Mukuma Chipawa called witnesses to prove that Nyundu and other officers did not give confession statements when they were photographed with firearms.
Among those who testified in the trial within trial is inspector Mulenga who narrated that while interviewing officers from the crack squad on January 3, 2021, he witnessed the officers identify the firearms they used on the fateful day.
He said photographs of each of the officers were taken with a paper describing their firearms attached to each gun.
Inspector Mulenga said the officers who were part of the crack squad are Chileshe Ng’andu, Lumayi Mukunga and Siwila Emmanuel that took part in identifying the firearms.
“Each officer identified the firearm that they used and they were photographed. The atmosphere was calm and not intimidatory,” said inspector Mulenga
In his testimony Nyundu said he received a call from Force headquarters and he was asked to go to interrogations over Nsama and Kaunda’s death.
He said he found his teammates from crack squad at force headquarters who were equally being interviewed.
Nyundu disclosed that when it was his turn he entered into a room which was occupied by six senior police officers, who introduced themselves and one of them explained the purpose of the meeting.
The accused said he was not comfortable during the said exercise as he was not warned and cautioned.
Nyundu said he was later taken to identify the firearm and he collected the only AK-47 rifle that was available in the room and it was not the correct gun which was in his possession during the shooting incident.
He indicated that he protested when he was given a wrong weapon as it was not one he used on the fateful date, but did not protest being photographed.
In his ruling judge Mwansa said it was established that the actual firearm used in the extrajudicial Killing of Nsama and Kaunda was not known.
He said it was also noted that a number of firearms were not individually signed for during the fateful operation and on January 3, 2021 a lot of officers were interviewed in relation to the deaths and Nyundu was part of them.
Judge Mwansa said there was no express confession recorded from any of the officers even though they were not warned and cautioned.
“In order for an action to be considered a confession it must be a clear and unequivocal admission of guilt,” he said.
“Confessions typically involve a person explicitly admitting to commiting a crime. Confession can be used as evidence in a criminal trial but must be obtained properly.”
Judge Mwansa ruled that there is no explicit admission by Nyundu and capturing him with the firearm in question does not amount to a confession.
“There is no need for this Court to resolve the issue of whether the confession statement was voluntary because the facts do not disclose that there was a confession statement,” he guided.
He said from the evidence adduced in the trial within trial he had failed to establish what actions were being contested that amounted to a confession.
“The accused and all other officers were simply being asked ordinary questions. No one was a suspect then and no one was apprehended. It is no-wonder there was no confession. The photographs are hereby admitted in evidence,” said judge Mwansa.
He adjourned the Matter to August 4, 2023 for continued trial.
By Mwaka Ndawa
Kalemba