Zumani’s co-accused made confessions under duress – Court establishes
THE Lusaka High Court has ruled that the alleged confession made Given Phiri and Marlone Banda that Zumani Zimba supplied them with chemicals that were used to gas the general populace in 2020 was made under duress.
This is in a matter where Zimba, Phiri, Banda and Potiphar Gwai are facing charges of chemical terrorism.
Judge Koreen Mwenda had ordered for a trial within trial after Kenneth Nkhuwa an assistant commissioner of police at Muchinga in his evidence in chief alleged that Phiri and Banda disclosed that Zimba supplied them with Halothane and Faron that were found in their possession.
Nkhuwa claimed that Phiri and Banda consented to give an interview to the police in Petauke district and that he did not force them to disclose that they were supplied with the chemicals by Zimba.
He indicated that the environment in which the duo was interviewed was cordial.
“They (accused) did not answer in unison they were given an opportunity each. The environment was cordial no one knew we had suspected gassers it was not hostile. The interrogations were super! we heard stuff that we have never heard of,” Nkhuwa said.
During cross examination by Makebi Zulu Nkhuwa said the accused were detained at the inquiries because they had committed an offence for posing as public workers.
“It’s my words against theirs, I have to be believed because am an angel, police officers are angels and they (Phiri and Banda) cannot be believed because they are not angels they can be considered anything else but not devils,” said Nkhuwa.
In his testimony Phiri said that he and Banda were brutalized by the police and poured water on suspicion that they were behind the gassing of homes, schools and work premises.
He indicated that Nkhuwa never warned and cautioned them.
“I never told him (Nkhuwa) that Zumani supplied us the chemicals. I said I was a Petauke resident and I was there a few weeks ago and met the headman and the councilor of Nyika ward. I told him I was Lungu’s nephew and I asked him to consult Zumani,”Phiri said.
“He concluded that Zumani had sent us to gas people. We were tortured and forced to admit we were gassers or funders of those who were gassing.”
He said their business in Eastern province was to purchase red mercury from a Mozambican who later foiled the deal when she asked the police to keep it in their custody on conditions that she would give them a K15, 000.
Ruling on the matter judge Mwenda said she does not subscribe to Nkhuwa’s statement that the accused were treated casually.
“His ploy to exaggerate the benevolence of the police is suspicious. I am made to believe the evidence of Phiri that a gun was pointed to his head,”judge Mwenda said.
“The accused person were treated as suspects in gassing and the evidence that they were made to sniff chemicals was not challenged by the State. Gassing was considered serious at that time it is illogical to say that they were taken to the commissioners office without being beaten during interrogations.”
She indicated that she believed Phiri’s testimony that they were maltreated because it was not challenged by the State.
“The police had guns at the point of apprehending the accused. The beating, the officers water on the accused and made the accused to sniff chemicals, the death threats that they would be killed by the public if they told them that they were behind the gassing, I find that the above circumstances caused fear and were prejudicial to the accused,” Judge Mwenda said.
She said Nkhuwa being a senior officer issued a verbal warn and caution statement without considering that the same would have been helpful to the Court in arriving at a just conclusion.
“The accused persons did not understand the nature of the offence they were charged with as the officers themselves even failed to tell the Court what charges the accused faced,”said judge Mwenda.
“A free trial begins during investigations and any short comings may jeopardise the trial. I am not satisfied that the prosecution has established the facts beyond reasonable doubt in a trial within trial. The confession statements were not made freely and voluntarily. The portion of that evidence is expunged from the record.”
By Mwaka Ndawa
Kalemba