MAGISTRATE : Peter Mungala

STATUS: Mention

DEFENCE : Marshal Mucheende, Clement Andeleki,Cornelius Mweetwa.Martha Mushipe

STATE : C Kahilu – NPA

STATE : All the accused are before the court,represented and are on bail.Date for commencement for trial moves to 26th May,2021 from the initial 17th May,2021.

COUNSEL MUSHIPE: Application on the conduct of the police.Great concern the increase in the battalion of police officers that have surrounded the court premises.The legal team as well as the accused persons and sympathisers are having difficulties to access the court premises.The environment is not conducive taking into account that the accused persons are on bail and have not been in any way caused any mayhem which can allow the police officers to conduct themselves in the manner they have.Counsel,relatives and accused persons are being asked to produce documented evidence before being allowed in.

Article 18(2) of the constitution stipulates that the accused are innocent until proven guilty while article 18(7) gives the accused the right to a fair trial.The presence of the battalion is an assault on the justice system and thus has adverse effect on the way Counsel and the accused persons are likely to defend themselves before this court.

COUNSEL ANDELEKI: We are perturbed by the conduct of the ZP in deploying unprecedented arsenal in the court premises on a matter where the accused persons have not been convicted of any wrong doing.There can never be any fair trial guaranteed in a hostile environment and we pray that the Police officers that have deployed this arsenal must take it back to the armoury where it belongs.This court is supposed to be independent and this is well entrenched in the provisions of Article 118 of the constitution.The judiciary cannot operate independently under such an environment. As officers of the Court,we have been subjected to searches by the police even when the officers do not have search warrants.We protest this action and seek the protection of this Honorable court to allow us dispernse our responsibilities accordingly. I pray that this court invokes its powers provided for under Article 119 of the constitution.

COUNSEL MUCHENDE : By way of augmenting the submissions of the defence and riding on the authorities cited,it is our submission that beyond being intimidatory, this heavy presence of police officers is reasonably unjust as the same is capable and tend to portray the accuse prima facie guilty even before this court could adjudicate on the matter and is prejudicial to the accused and interest of justice.This court is an open court and not a Marshal Court to which every citizen is entitled to access its hearing.An open court entitles the media to access the hearing of the court.This is being denied illegally and with impunity by ZP who have temporarily turned these premises into a police station where they ought to be found as they have outnumbered by a great ratio the people who have the right to be before this Honourable court. It is our prayer that this total disregard and frowning upon of the court can only be remedied by powers vested upon this court as already prayed by my learned brother.

COUNSEL MUCHENDE : There is no mischief that the Police are trying to cure by their presence.The police are merely being provocative and intimidatory out of overzealousness,the police fired teargas canisters the last time we appeared before your learned sister.This is and was uncalled for to chase away members of the public that wanted to attend the court hearing. I would like to come to the defence of the media by bringing to your attention the fact that all media houses with the exception of ZANIS and ZNBC have been barred from covering these proceedings.This is an affront to Article 20 (2) of the Bill of Rights and Article 23 which protects against discrimination.All the media houses are being stopped from entering the court premises.You have the authority to manage the affairs of this judicial office without interference and it is your office that has the right to stop anybody causing mischief from coming into these premises and not the police.It is not for the police to censor who will enter the court premise.That is your office.Your office has been held captive by police,Your office is surrounded by police and you cannot discharge your duties when there is a hostile take over of your office.

Either today or the next sitting,we would like you as an office to address the concerns of your office for the purposes of restoring your judicial independence,restoring sanity and restoring the rights not only of the accused but the Members of the public and the press with equal measures in their entitlement to follow your proceedings which interest them.It is only when they cause mischief that you will direct that a particular person leaves the premises and not before.Our clients are peaceful people.A5 is a queen of the mukuni people and police are trying to paint them black in the eyes of public opinion.

STATE : We have taken note of the submission from the defence and our response is as follows.

Just like the constitution provides for the presumption of innocence,the same constitution gives mandate to the ZP to provide security to the nation and in doing so,the police we believe do not take any instructions from persons not experts in security matters.There is need for peace to prevail in order for the court to exercise its judicial function and as the mood is inside and outside the courtroom, our understanding of this mood is that it is peaceful.The number of ZP which I can’t state whether it is bigger than last time is in our view not intimidation as they are merely standing to ensure that there is peace both inside and outside the court. The case itself has the potential to attract a huge number of people wanting to listen to the proceedings and it is therefore our understanding that there is no single building that can accommodate all the people wanting to be found and listen to the proceedings even if it is their constitutional right to assemble.

Restricting the number of people to the premises by the ZP is also one way of securing the safety of everyone who has come to attend including counsel and accused persons.The presumption of innocence by the constitution,the independence of the Judiciary are not in anyway disturbed by the presence of the police.It is therefore,that the presence of the police today has not in anyway intimidated the access to these premises but are merely carrying out their constitutional duty to see to it that the judicial function is carried out under a peaceful environment.Contrary to heightened assertions by the defence that the court has been held captive,we submit that the court is not under any captive and we therefore wish the court not to entertain the defence submissions.

On the press,the state has just been notified during the submissions that only znbc and zanis have been allowed access to the premises.We have nor been informed by the police or indeed any other person or organisation whether or not only selected media houses have been allowed access to court premises.That being the case,we leave it to the court to decide as we are not in the position to commit ourselves in the absence of evidence.

COUNSEL MUSHIPE : We reiterate our submission pertaining to the conduct of the police.The conduct is an assault on the independence of the Judiciary.

The number of police officers deployed for this court proceeding is unprecedented and a total waste of tax payers money.The provisions of the constitution are very clear as regards the presumption of innocence and the right to accord an accused person a fair trial or hearing.Faireness entails that the accused persons have at their disposal all the available material in which to defend themselves including the support of family members.

Choma is a peaceful town and so as the accused persons and supporters. This court is mandated with power to commit anyone for contempt of court in an event of unruly behaviour. We must take judicial notice of the fact that the heavy presence of police entails that there is someone amiss.

The accused persons just need to be observed and should thus not feel intimated and that they should not feel guilty before the court makes a decision on the matter.The defence has only raised issues with the numbers of officers in the premises which are beyond normal.The arsenal which they have come with against an unarmed and innocent accused persons and members of the public.

We humbly request the court to make the necessary directives as regards the sentiments that have been raised and also to take judicial notice of the fundamental rights and freedoms of expression with regards to the media.

COUNSEL MUCHENDE : Using the word judicial notice,the court can see that in this room,there is no media gallery.All courts must have a gallery which I can’t see in here.

The evidence speaks for itself.I want to say that the presence of the media is the solution to the concern raised by my learned colleague from the state when he submitted that this case can attract huge number of people wanting to listen to the proceedings.

And I agree with him as this is a case of public interest.Allowing the media to cover the proceedings is the cure to that mischief.When you stop the media from the gate,people will.want to have direct source of the information.

Our plea is that you guide accordingly that in these proceedings which are of public interest,all media houses be allowed access to the premise.

We agree that the experts on security are the police,but we do not agree on whether they have a right to decide who should enter or not enter the premises.It is the court that should tell the police as to how many people can be allowed in the courtroom.

If the police are giving orders as to how this office must manage its operations,that is the interference and we urge this office to give directions to the police on how it should carry out its duties.

COURT : We shall stand down for 10 – 15 minutes for me to deliver the ruling.



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