[By Martin Kunolu]
Hakainde Hichilema and five others were charged with three counts, among them, treason.
The particulars of the offence alleged that the accused persons on unknown date but between 10th October, 2016 and 8th April, 2017 at Lusaka in the Lusaka district of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did prepare and endeavour to overthrow by unlawful means the government of Edgar Chagwa Lungu as by law established.
Unlike the other treason cases, the Hakainde case, which contravened section 43(1)(a) of the Penal Code, Chapter 87 of the Laws of Zambia, did not specify the overt acts. In The People v. Hakainde Hichilema and 5 Others (2017), a ruling to determine a number of preliminary issues raised on 18th and 19th April, 2017, State Counsel Vincent Malambo, before Magistrate G Malumani, moved on a motion to quash the charge of treason on the ground of lacking the essential elements of overt acts. It was argued that the court has inherent jurisdiction to examine the charge on the face of it and determine whether it is properly particularised.
It was submitted that treason is a special charge which goes beyond merely setting particulars of offence. The charge must contain overt acts. These are details of actual conduct if when proven amount to treason; that the particulars of offence must state in clear words what each accused did, how they did prepare, how they endeavoured to overthrow the government. In the absence of overt acts, the charge is incompetent.
In response to the defence, Mr Zimba the principal State advocate from the National Prosecutions Authority conceded that a charge of treason must indicate the overt acts. The prosecution counsel acknowledged the argument on the issue of overt acts said to be missing upon which an accused would properly instruct counsel.
Counsel Keith Mweemba elected to adopt State Counsel’s submissions but chose to elongate the strength of the submissions. He cited the treason case of Edward Jack Shamwana and Others v. The People, saying, the Supreme Court put it very clear that overt acts must be there. Adding that the charge was incompetent in the extreme, whose only purpose was not to advance the course of justice but to perpetrate injustice. And to essentially buttress on the rights of an accused to a fair trial, counsel cited article 18(2)(b) of the Constitution, reading: “Every person who is charged with a criminal offence shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged.’’
In pointing out the charge, counsel Mweemba brought it to the attention of the court that on the particulars of offence, the accused are alleged to have prepared or endeavoured to overthrow the government of Edgar Chagwa Lungu. He submitted that there is no government of Edgar Chagwa Lungu in the country, it is not the person in office.
Counsel Mweemba’s observation was supported by magistrate Malumani who stated: “Now, there is no dispute that this statement does not in any way disclose what the accused did whether individually or severally. There is nothing to show how they prepared or what they did in preparing or endeavouring to overthrow the government. Let me also point out that it is unfortunate that on what the prosecution called particulars of offence, they described the government in relation to the name of the Head of State, His Excellency President Edgar Chagwa Lungu. They ought to have known that a government has a meaning assigned to it in terms of section 3 of the interpretation and general provisions Act, Cap 2 volume 2 of the Laws of Zambia as ably submitted by counsel Mweemba. Under this provision, the term government means the government of Zambia. Further, from what the prosecution called particulars of offence, the only thing that can be deduced is that the prosecution seems to allege that the accused persons may have said or done something on 10th October, 2016 and, or 8th April, 2017 or in between, which acts have not been disclosed. Whatever it was, what the prosecution ought to bear in mind is that what constitutes an overt act to prove the felony of treason goes far beyond mere acts of omissions in conduct as demonstrated in the leading authority of Edward Jack Shamwana and Others v. The People. This is the precedent the prosecution could have carefully studied before framing the charge.”
Magistrate Malumani added: “A charge of treason from what can be deciphered from Section 43 of the Criminal Procedure Code Cap 87 which created it is premised on overt act or acts as State Counsel Malambo stated in his spirited submissions. Those acts must be clearly particularised. Invariably, I agree with State Counsel when he states that overt acts must be pleaded and properly so, in devoid of the pleading, the charge is undoubtedly incompetent.’’
And from the argument put across, there was no reasonable prospect of a conviction in the Hakainde case if trial proceeded, because there was a clear absence of overt acts in the treason charge, hence the matter having a valid defence. The general rule for a conviction to be secured in a crime is that, apart from proof of actus reus and mens rea, there must be absence of valid defence. Besides, the purported charge in the Hakainde case exists in a vacuum.
In the leading authority, the Shamwana case, there was evidence in form of documents and oral testimonies by which the accused were proved to have arranged for the diversion of a presidential aircraft at a meeting held at one of the accused person’s house. There was evidence of meetings held in planning, a well set out plan to capture the then head of State President Kenneth David Kaunda.
In Zambia, it is a known fact that murder, treason and aggravated robbery are non-bailable crimes. But whether incidentally, coincidentally or intentionally, some of these cases have been slapped on and affected some opposition leaders, among them, Obvious Mwaliteta who was slapped with a charge of aggravated robbery. So, these cases, in some instances can be used on the opposition group because the State, with a burden of proof would be ‘tactfully calling for adjournments in order for the accused person or persons to continue being in detention since the matter is non-bailable.
Suspects have been detained for long periods while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even though they have not been sentenced. This is a clear violation of an individual’s fundamental rights and freedoms under the Constitution of the Republic of Zambia.
The author is a journalist with a specialty in court reporting. He worked for the Zambia Daily Mail and The Post Newspaper. Currently, he is a Law student at the University of Zambia.
Email: mkunolu@gmail.com