HAKAINDE Hichilema’s lawyer Vincent Malambo says there is no treason without overt acts.
And Hichilema, the UPND leader, has asked the Lusaka Magistrates’ Court to discharge him because the treason charge he is slapped with is incompetently before the court.
This is in a matter in which Hichilema and five others are in court for, among other charges, treason.
Hichilema and five others on Tuesday appeared in the magistrates’ court for explanation of a treason charge.
Hichilema, 55, Hamusonde Hamaleka, 41, Muleya Hachinda, 52, Laston Mulilanduba, 45, Pretorius Haloba, 58 and Wallace Chabala aged 56 appeared before chief resident magistrate Kenneth Muliefe who allocated the case to magistrate Greenwell Malumani.
In count one, it is alleged that Hichilema and five others on unknown dates but between October 10, 2016 and April 8, 2017, in Lusaka, jointly and whilst acting together with other persons unknown prepared or endeavoured to overthrow by unlawful means the government of Edgar Lungu as by law established.
In count two, Hichilema and five others are charged with disobedience of lawful orders.
It is alleged that the six accused on April 8, 2017 at Limulunga district in Western Province jointly and whilst acting together with other persons unknown disobeyed an order or command duly made by No.12453 inspector Ndalama in his public capacity and duly authorised to give way to presidential motorcade, which the accused wilfully disobeyed.
Hichilema is further charged with use of insulting language with allegations being that on April 11, 2017 in Lusaka, he used insulting language to the police officers who were executing their duties by saying ‘you are dogs, mother fuckers, idiots and asshole’, which were provocative and likely to cause the breach of public peace.
When the matter came up yesterday morning before magistrate Malumani, Hichilema’s defence team led by Malambo said the charge of treason was merely intended to keep the accused persons in custody.
He contended that treason must contain overt acts, which are details of the actual conduct to show what the accused persons did in preparing to overthrow President Edgar Lungu’s government.
Malambo told the court that the charge was bad at law.
“Treason is a very special genre of offence and is charged differently from theft, robbery and other offences. The gentleman who drafted count one (treason) has never drafted a treason charge. You do not charge treason without overt acts, there is no treason without overt acts,” he added.
Malambo argued that the charge sheet was inadequate and not properly laid.
He urged the court to determine the issue and consider granting bail on the other two charges that were bailable.
“I repeat, it is not sufficient for the State to merely charge the accused with treason without overt acts. In the absence of overt acts particularising, the charge is incompetent,” Malambo argued.
Another defence lawyer Keith Mweemba said there was no government of Edgar Lungu in the country as purported in the indictment but that there was only a government of Zambia.
He said the court had power to quash the indictment and discharge the accused persons if there was no competent charge.
Mweemba argued that the treason charge was not only ferocious but also incompetent.
In response, State prosecutors admitted that a treason charge must indicate the overt acts constituting the charge but argued that the charge was not bad at law.
The State at some point applied to amend the treason charge while responding to the defence’s application on the same charge.
But the defence objected to the application while the court said it could not allow the State’s request because it had not yet ruled on the matter.
Earlier, the State sought more time to respond to preliminary issues raised on Tuesday, among them that the court should investigate an unknown person who was allowed into Hichilema’s cell at night when his wife and family, including lawyers, were not allowed.
The State is also yet to respond to allegations that three of Hichilema’s co-accused were tortured by pepper spraying their private parts and also being badly beaten.
The court premises were surrounded by armed police officers that screened people that were entering.
The matter was adjourned to 09:00 hours today for the State to respond to other issues that were raised by the defence.