STATE ACCUSED OF LACKING SERIOUSNESS IN THE ACKSON SEJANI CASE AS IT FAILS TO PRODUCE WITNESSES
CHOMA – 26/05/21
The State has applied for an adjournment in the case in which Ackson Sejani and four others are charged with the abduction of the Hatembo siblings as witnesses were not before Court.
Senior State Advocate Monde Kamwi Tembo told Principal Resident Magistrate Idah Mupemo Phiri that the State has faced logistical challenges in bringing the witnesses to Court hence applying for an adjournment.
Mrs Tembo asked the Court to rely on section 202 of the Criminal Procedure Code chapter 88 of the Laws of Zambia and as guided by the Supreme Court in the case of DPP vs Whitehead.
But the defence led by Counsel Martha Mushipe vehemently objected to the application by the State as they had ample time in which to prepare and present the witnesses as rights for the accused persons were being infringed upon.
Counsel Mushipe urged the Court to invoke the provisions of section 199 of the CPC and dismiss or discharge the accused on a no evidence basis while Counsel Clement Andeleki wondered where the State has found the resources to bring the huge number of unnecessary police officers to the Court premises if they cannot bring the witnesses.
BELOW IS THE VERBATIM AS RECORDED
CHOMA MAGISTRATE COURT
The People vs Fines Malambo and four others
Presiding Magistrate
PRM Idah Mupemo Phiri
State Prosecutors
Monde Kamwi Tembo- Senior State Advocate
Chitengi Kahilu – State Advocate
DEFENCE
Remmy Mainza – Mainza and Company
Clement Andeleki – A Mbambara legal Practitioners
Martha Mushipe – Mushipe and Company
Cornelius Mweetwa – Muleza Mwiimbu and Advocates
Marshal Mucheende – M Associates.
Accused
1.Fines Malambo
2.Ackson Sejani
3.Vincent Lilanda
4.Javan Simoloka
5.Victoria Mukuni
Senior State Advocate Monde Kamwi Tembo
The state is not ready to proceed with trial as witnesses not before court due to logistical challenges and unable to transport the witnesses to choma.
Apply for an adjournment while relying on section 202 of the cpc which permits the court to exercise its discretion whenever faced with an application to adjourn as guided by the Supreme Court in the case of DPP vs Whitehead.
Proceeding with the trial will not be feasible on that premise and further this is the first application in this matter.The Court should take judicial notice of the fact that the accused persons are on bail and will not suffer any prejudice should the application be granted.
Defence Counsel Mushipe
We vehemently object to the application for an adjournment because this is a matter of public interest and should be treated as such. The state had ample time in which to prepare and present the witnesses before this court. The rights of the accused persons are being infringed upon. The accused persons stayed in police detention for 34 days without being brought before the court and were subjected to inhumane and degrading treatment
Article 18(1) is precise and authoritative on the need for a fair hearing within reasonable time frame.
The state has not availed any witnesses even at the last sitting who would have been warned so as to secure their presence before this court.If the state is not ready to proceed,they should instead offer no evidence and have the accused persons discharged accordingly. Section 199 of the cpc grants the trial court such authority.
The state is abusing the due process of the law and as such the application should be treated with the contempt it deserves while exercising its powers and accordingly dismiss or discharge the accused persons in accordance with section 199.
Defence Counsel Clement Andeleki
We are taken aback and surprised by the application that has been made by the state to adjourn this matter.As the record may show,the guidance of this court was for an expedient trial to have this matter disposed off and remove public interest anxieties.The state has had ample time to put its house in order and look for logistics which they claim they don’t have to bring the witnesses if at all they have any before this Honourable court.
Accused persons have a right to have their matter determined through a speedy trial as provided for under Article 18 of the Constitution of Zambia.
This matter belongs to the state.They are the ones who have brought the accused persons and also brought maximum police presence showing anxiety of wanting to prosecute.
We are taken aback to note that they have started freezing to bring the witnesses. It is very heavy to stand accused as their freedoms right now stand vexed.While it is the first time the state is praying to adjourn this matter and as defence we would be happy should the court be inclined to adjourn which we are opposed to,to seriously warn the State that should they not bring all their witnesses on the next hearing date,then the accused persons should be set free to the liberties.
The court has been referred to the case of DPP vs Whitehead on discretion of the court to adjourn,the correct interpretation to be attached to this case is that there must be reasonable justification in the interest of justice for the court to exercise such a discretion.The state has not demonstrated.Logistical challenges is too General and a relaxed approach to this matter.Taking it so lightly.
Accused persons are expending money and time to come and appear before this court which is also a very busy court.Nearly all the defence Counsel before you are coming from Lusaka and have to lodge just to attend Court.As defence,we are not happy with the luxurious approach that the state is taking in this matter.
The state has not told the court the manner of logistical challenges they are facing. Why bring the accused to court if faced with challenges. The case of DPP vs Whitehead referred to by the state does not apply to the case before the Court.Adjournments must only be granted in very rare circumstances where if a case was to proceed,prejudice and injustice would be occasioned. There is no proper ground laid by the State to warrant an adjournment. If it is logistics in terms of money the State doesn’t have,they should have redirected the thousands or money being used to bring the police and bring the witnesses.
The Court has power to warn the State to attach seriousness to this matter so that the accused persons are set free should the witnesses not brought.
The case of William Chipango and others vs the people of 1978 and the decision of Muyangwa and others vs the people both of which are Supreme Court decisions are authoritative.
Defence Counsel Mucheende
The enthusiasm with which the state arrested the accused persons is not even a quarter of the enthusiasm for prosecuting this matter.It is not far fetched to submit that they achieved their momentary acclaim as an end in itself by arresting the accused people. Now that they have achieved the end,they have opted to be kicking the cane down the road by procrastinating in prosecuting the matter through the application for an adjournment.
We object to the adjournment on grounds that it is so lame and vague an excuse that it does not merit your exercise of the discretion that you hold under section 202 of the CPC.Your discretion can only be exercised based on strong and compelling reasons. The reason of logistical challenge is neither strong nor compelling. Its a mere excuse of a lazy approach in an otherwise serious criminal matter involving highly respected members of the public.
As though the State thinks that your discretion to adjourn is given,they have not even explained what they mean by logistical challenge so as to appreciate where they are coming from. Without sounding rude,the State is taking this court for granted.
That said,the defence prays that the Court declines to exercise its discretion and stand down the matter upto 14:00hrs to allow the State bring its witnesses and trial shall commence today since the accused persons have been walking under a cloud of shame for more than 2 months now.
The interest of justice which this court dispenses requires that the accused and their reputation are restored as quickly as possible so that they can go about their businesses without shame. In default of yielding to your directive that the matter be heard this power,we urge the court to invoke its powers under section 199 to dismiss the charges against the accused for want of prosecution. Their colleagues in the case of case of Chilufya Chitalu were magnanimous in offering no evidence when they could not proceed. Clearly the State before this court does not have that magnanimity and we leave everything to the court to exercise its authority.
Defence Counsel Remmy Mainza
All issues relating to this application has been ably canvassed by my colleagues and I can only urge you not to entertain the application by the State as it lacks merit as submitted by my colleagues.
Senior State Advocate Kamwi Tembo
We wish to state that we are not taking the Court for granted neither are we procrastinating in the prosecution of this matter. We are willing to prosecute this matter on the next hearing date should our application be granted. This is the first application in these proceedings. Should the court grant the application, the State shall endeavour to bring the witnesses before this court.
State Advocate Kahilu
Section 199 of the CPC refers to a complainant who is absent in court.The State in this case is actually present as the complainant. The meaning of complainant was decided in the case of the people vs Felistus Mayonda (unreported) by the Livingstone High Court. The court did rule that the term complainant is defined depending on whether or not the proceedings were commenced under section 90 or section 2 ( tries to check the CPC for the correct section)
Counsel Andeleki – We need the Court’s guidance here.We thought the State was giving us the holding of a judgment but it seems they are looking for the law themselves.
State Advocate Kahilu- I’m trying to make sure that I do not misdirect the court.
The reliance of section 199 is not the correct position as the State is present and we shall rely on the authority cited by the senior State Advocate ( I’m getting confused because the senior Counsels are making Comments)
PRM Mupemo Phiri
Equally surprised that the state is not ready to proceed as the date was agreed by everyone. I however grant the state a benefit of doubt with a view that the witnesses will be available at the next hearing. Especially that there were changes to the initial dates and I took it everything will be ready.
Senior State Advocate Kamwi Tembo
We propose June 25th for mention and July 17th for trial.
Defence Counsel Mushipe
Our only free dates your honor is August 19th,2021 as all Counsels are occupied with High Court,Court of Appeal and Constitutional Court matters.
Court : Those dates are too far.Can we atleast have dates before June 25th.We need to find dates before the 19th.This matter needs to be concluded in good time.We stand down the matter to 14:30hrs to allow the parties agree on an earlier date.
Court adjourns
14: 40hrs
The parties agree to adjourn the matter to June 25th for mention and July 27th for trial.
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