A bad charge is no charge at all – magistrate Malumani



(By Mercy Nayame and Lillian Zulu)


LUSAKA principal resident magistrate Greenwell Malumani yesterday ruled that the treason charge which UPND leader Hakainde Hichilema and five others were slapped with was undoubtedly incompetent and embarrassing.


And Hichilema and his co-accused have pleaded not guilty to the charge of disobedience of lawful orders.


Meanwhile, Hichilema has also denied the charge of using insulting language.


This was in a ruling on preliminary issues that were raised by defence lawyers.


Among the preliminary issues were that the treason charge should be quashed for incompetence, and also that the court should order investigations of a strange person, carrying a bible, who visited Hichilema in his cell at Lilayi Police Training College at night when his family members and lawyers were barred, and also on three of Hichilema’s co-accused who were tortured.


In his ruling yesterday, magistrate Malumani said the treason charge was bad at law.


He said the State had contradicted  itself when it admitted that the charge was bad at law but at same time talked of amending the indictment by way of substitution.


Magistrate Malumani said a bad law could not be amended.


He said section 213 of Criminal Procedure Code only allowed a defective charge to be amended.


A bad charge is no charge at all,

magistrate said.


He said he had no power to amend the charge which was bad at law.


I expected the prosecution to argue which authorities give the court power to amend a charge if  there is such an authority,

magistrate Malumani said.


He also said it was not in dispute that the charge did not in any way disclose  the overt acts that the accused persons, whether individually or severally, did to be charged with treason.


There is no dispute that there was nothing to show how they endeavoured to overthrow the government,

magistrate said.



He, however, allowed the State to substitute the indictment to separate treason from the other two charges which he proceeded to preside over.



Magistrate Malumani also agreed with the defence that there was no government of Edgar Chagwa Lungu but that of the Republic of Zambia. He said the state should have known well when drafting the indictment.


He said he would proceed with two of the charges where he had jurisdiction and allow the treason charge to be separated and re-allocated.


Magistrate Malumani ordered investigations in the case of the strange person who visited Hichilema when all his sympathisers and family members were not allowed to visit him.


He also ordered the police commanding officer for Lusaka Province to investigate the abuse and assault the accused suffered while in custody.


Magistrate Malumani further ordered that the prison authorities allow Hichilema to be availed with books, newspapers and other reading materials because they were not a security risk as stopping them from doing so was a misrepresentation of the law.


After the accused took plea, magistrate Malumani admitted the accused to bail in the sum of K10,000 each in their own recognisance. He also ordered them to provide two working sureties who were in gainful employment and are of fixed abode. Magistrate Malumani, however, sent the treason charge for re-alloaction.

And when it was called before principal magistrate Mwaka Mikalile, she allocated the case to principal resident magistrate David Simusamba, who explained the treason charge to them. Later, the defence applied for a Preliminary Inquiry into the charge and asked the court to take judicial notice that magistrate Malumani had earlier granted the preliminary inquiry before the case was re-allocated.


But the State applied for an adjournment to a later date to respond effectively to the application by defence.


In reply, defence lawyer Vincent Malambo said the application for an adjournment was an endeavour to delay proceedings.


Magistrate Simusamba  said it was the first time he was hearing the matter and adjourned it to today at 09:00 hours for the State to respond to the application for a preliminary inquiry by the defence.


Meanwhile, the state has amended the indictment on the treason charge against Hakainde Hichilema, stating that the opposition leader wanted to declare himself President of the Republic of Zambia at the Kuomboka Ceremony in Mongu.


Earlier, magistrate Malumani ruled that the state failed to state any overt act made by HH in order to overthrow the government.


Referring to the Shamwana case, magistrate Malumani said the charge was clear and there was evidence of meetings held in planning the capture of then president Kenneth Kaunda.


“In the light of the foregoing, the purported treason charge exists in a vacuum,” ruled magistrate Malumani, but clarified that the charge of treason could only be tried in the High Court.


He added that the subordinate court could not quash such an indictment but open an inquiry instead.


“It is of the opinion of this court that the charge has no substance to be submitted for trail,” he said.


Magistrate Malumani allowed the state submit a fresh indictment of treason against HH which would be heard in the High Court.


The State, however, produced the indictment accompanying other charges with an addition of overt acts committed by HH.


In Overt Act one, the state claimed that on April 5, Hichilema, together with others, conspired to mobilise an advance party to ensure that he was to be accorded the status of President of the Republic of Zambia at the Kuomboka Ceremony in Mongu.


In Overt Act two, the state submitted that on April 8, Hichilema and over 60 other unknown people and being on a convoy of motor vehicles on the Mongu Limulunga Road did obstruct the presidential motorcade, an act that was likely to cause death or grievous harm to the President of the Republic of Zambia, in order to usurp the executive power of the state.


Magistrate Malumani said he could not allow the treason charge to be submitted jointly, but accepted the indictment and called for a break to study the details in chambers.
Hichilema took advantage of the break to chat with his wife and other family members.

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