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I wanted to beat up HH, witness tells court

STATE witness Aubrey Hamweene has told the court during cross examination in Hakainde Hichilema’s insulting language case that he wanted to beat up the opposition leader when he and other officers went to his house.

 

 

Hichilema is appearing for the alleged offense of using insulting language on police officers who went to arrest him. He has since been found with a case to answer and placed on his defence while judgment is set for Monday, May 15.

 

 

Cross examination of the State witnesses by the defence counsel continued yesterday.

 

Below is the verbatim:

 

SILENCE IN COURT:

Magistrate Greenwell Malumani walks into the court room and state advocates read out the alleged insulting language slapped on Hichilema.

 

State advocates apologise for being late.

 

Then defense lawyer Jack Mwiimbu takes the floor and says the defense team would like to raise issues pertaining to the conduct of the Police at court premises.

 

Defence: Everyone recalls that during the last deliberations, court ordered that Police must be orderly especially how they treat lawyers… a number of defense lawyers this morning were blocked and denied access to the premises the court. And even litigants and witnesses were also blocked by the police. If there is any need for police to behave in such a manner, police must consult the judiciary…

 

At this point, State advocate Sakala tells court that the defence was not the only one blocked by the police.

 

State advocate: The issues raised by the defense team are not peculiar to the court. Police must continue with their work.

 

Magistrate Malumani: Who is the senior officer issuing instructions to juniors?

 

State advocate: we don’t know who is in charge and giving them instructions.

 

Magistrate Malumani then tasks the prosecution team led by Sakala and Mwewa to identify who is in charge of the Police and giving them instructions at the court premises. He says the prosecutors and state advocates must state who is in charge and after hearing from them, he will give a ruling.

 

Magistrate Malumani: If there are any defense lawyers who have been blocked outside, may they be phoned and state how safe they are.

Defense lawyer Keith Mweemba takes the floor and says “good morning officer Mbita, did you sleep well?”

 

Witness: Yes I slept well.

 

Defence: Yesterday, the cross examination ended on investigations. Who was in charge of the investigations?

 

Witness: I cannot disclose who was in charge of the investigations.

 

Defence: whether the state witness likes it or not, he will answer who was in charge of the investigations. If he refuses, he will be locked up for not less than eight days as the law says.

 

Magistrate Malumani then reads from the Criminal Procedure Code which says anyone refusing to give answers under oath can be sent to prison.

 

Witness: I do not know who is in charge of the investigations.

 

Defence: how can an intelligence officer and arresting officer fail to tell how investigations were done?

 

Magistrate Malumani: Are you the one who conducted the investigations and charged the accused with treason?

 

Witness: Yes

 

Defence: according to your investigation, how was the route lining done and who was in charge?

 

Witness: I can’t answer for security reasons

 

Defence: No, you will answer and you just have to answer. It’s my final warning.

 

Witness: I don’t know who was in charge

 

Court: reads section 150 of the CPC for the witness who is proving too evasive in his answering.

 

Defence: How was the route lining done?

 

Witness: I dont know since I was not in charge

 

Defence: As arresting officer, you arrested someone with a capital offence even without investigating?

 

State advocate sakala: We need guidance as the matter before court is not treason. We wonder the relevance of the questions. The treason charge is not what is being discussed and the witness should not be asked such.

 

Defence: How can a person be arrested for a capital offense such as treason which is basically leading to killing someone without conducting investigations as the State witness has maintained that he does not know who held and led the investigations when HH was arrested?

 

State advocate Sakala is seen whispering to the state witness but the Magistrate Malumani wonders why he is doing that without following the court procedure of rising.

 

State advocate Sakala: I will oblige by the court rules

 

Magistrate Malumani then rules that the State witness, being the same person who arrested HH on treason, must be asked by the defense lawyer Mweemba how he did it and investigations he conducted…

 

Court: Cross-examination is the engine of a trial.

 

Defence: Do you remember the day you appeared for the habeas corpus case in the High Court?

 

Witness: Yes I do

 

Defence: Do you remember that you produced a notebook which you gave to the attorney General and was sure that the accused would stand in court as you had investigated:

 

Witness : Yes

 

Defence: Since you investigated, how was the lining done?

 

Witness: I can’t tell

 

Defence then produces for the state’s attention a document which is part of the submission in the habeas corpus case before showing it to the witness.

 

Defence: What is this report?

 

Witness: It is an official arrest with my reports attached.

 

Defence: You made up your mind to charge and arrest?

 

Witness : Yes

 

Defense: How did you make up your mind and arrest HH without knowing the truth?

 

Witness: I don’t know who conducted the investigations [on whether Hichilema did commit treason and used insulting language on me and others].

 

Defense lawyer Mweemba asks for permission to hand over a habeas corpus and exhibits written MM1 to the state advocates and go through the provisions on investigations.

 

Defense: Read what you have in your hands.

 

Witness: It the official arresting documents which I wrote.

 

Defense: Is this the same document you used to arrest HH?

 

Witness: Which case?

 

Defense: All the charges.

 

Witness:  Yes.

 

Defense: What was the length lining on the Mongu-Limulunga? Were there police officers to clear the road? How was the spacing of police officers on the Mongu-Limulunga road during Kuomboka ceremony and how many police officers were there?

 

Witness: I do not know.

 

Defense: But you arrested HH that he blocked a presidential motorcade?

 

Witness: I am not aware how

 

Defense: How did you arrive at arresting HH?

 

Magistrate Malumani then guides that the officer has disclosed that he does not know how the route lining was done and the police officers’ spacing on the Mongu-Limulunga road during Kuomboka ceremony.

 

Defense: What did Inspector Ndalama inform you of what happened?

 

Witness: Inspector Ndalama did not tell me but only submitted a report.

 

Defense: Did you record a statement?

 

Witness: I did not record any statement from Inspector Ndalama…I don’t know the report.

 

Defense: How did you arrest the accused without investigations?

 

Witness: I was convinced that the accused had committed treason. I did my own investigations.

 

Defense: When did you visit Mongu, Western province? Were you on duty?

 

Witness: I was in Mongu on 8th April, and I attended the Kuomboka ceremony.

 

Defense: Did you record a statement from the anyone in Mongu?

 

Witness: I did not.

 

Defense: Who is the commissioner for Western Province?

 

Witness: It is Commissioner Lungu, but I did not record any statement from him.

Defense: Whose superior orders were u following?

 

Witness: I don’t know

 

Defense: What was the spacing of officers to signify that the President would be using the Limulunga road?

 

Witness: I don’t know

 

Defense: Elaborate briefly what procedure is employed and was employed according to your investigation.

 

Witness: I don’t know as I was not in the team.

 

Defense: Since you recorded a statement from inspector Ndalama…what did he tell you in relation to the lining?

 

Witness: [Hesitates]…he didn’t tell me anything.

 

Defense: You effected an arrest without recording any witness statement from inspector Ndalama.

 

Witness: I didn’t record any other than getting a report…

 

[Break]…

 

Defense lawyer Mweemba: Are you aware that a government can be overthrown lawfully?

 

Witness: I have no time to respond to anything related to treason.

 

Then magistrate Greenwell Malumani asks what the level of education is for the State witness.

 

Witness: I am a police officer but I can’t state what I have studied because it can be taken as demeaning.

 

Defense: Do you agree with me that it is allowed to overthrow a government through democratic means?

 

[Interjection from State advocate Sakala who objected that it is not fair to ask such a question to someone who is not a lawyer].

 

Magistrate Malumani guides that the question be not entertained.

 

Defense: Are you aware that there is a presidential petition in the country and before the court?

 

Witness: I am aware, but it was thrown out.

 

Defense: Was the matter before Justice Chitabo thrown out?

 

Witness: I am not aware.

 

Defense: Is it treason to challenge any presidential election in court?

 

Witness: It is not.

 

Defense: What evidence do you have of the accused planning to overthrow a government?

 

Witness:  I will not disclose.

 

Then state advocates takes to the floor and says it is not fair to ask such a question at this stage.

 

Defense lawyer Mwiimbu rises and says the State witness has no choice on what he can comment on or not because all documents are in court and in circulation.

 

Defense lawyer Mweemba then expounds that the State witness must disclose what evidence he has.

 

Magistrate Malumani interjects: The State witness is not allowed to state the treason evidence. The treason charge ruling slated for today at 14 hours will not take place today but tomorrow. This is to allow this case [use of insulting language] to end today. The State witness may in general manner comment on the treason charge and all cases. And if there is no cooperation, I may have to refer the matter to another magistrate.

 

Defense: What did you and other officers put on when you went to arrest the accused on April 11, 2017?

 

Witness: We were dressed in casual clothes.

 

Defense: Are you aware that it is difficult for people to identify an officer when not in uniform?

 

Witness: Yes

 

Defense: Are you aware that when conducting public duties, police officers must be in uniform, failure to do so may lead to relieve of duty?

Witness: No

 

Defense: What language is “insulting language “?

 

Witness: It is English…insulting language is from insulting.

 

Defense: Was the accused and his entourage cleared by Police in Mongu?

 

Witness: I don’t know.

 

Defense: You arrested the accused at Lilayi which is not gazzeted.

 

Witness: It is but I don’t know how.

 

Defense: State witness has not produced any pictorial evidence to the case in court other than oral to exclude the danger of false implications that our client used insulting language?

 

Witness: I have no evidence.

 

[Defense Lawyer Gilbert Phiri takes the floor]

 

Defense: Who assigned you to arrest and charge HH on three charges?

 

Witness:  I was assigned by the officer in charge Arthur Shonga.

 

Defense: It is a fact that you were at the accused’s house on 10th April, 2017, at 22:00 hours, is it not?

 

Witness: I was not there at that time and on that day.

 

Defense asks that the court avails him the report that the State witness did author of what happened.

 

State advocate Sakala argues that there is no need of such but magistrate Malumani guides that it be brought forward.

 

Defense: Whose handwriting is this and who wrote the report? [referring to the report]

 

Witness: It is mine and I wrote it.

 

Defense: Read paragraph six.

 

State witness struggles but reads and reads as follows: Around 22: 00 hours on 10th April, 2017, I pursued Mr Hakainde Hichilema to his residence at plot 10474 off Leopards Hill road. During an operation which lasted for more than four hours, the following suspects were apprehended for various offenses…

 

Defense: The witness told the court that he never went to the accused’s house on 10th April, 2017. Why lie?

 

Witness:  I did not go to the accused’s house.

 

Defense: You are a liar.

 

Court: I will not allow the state witness to continue telling lies. This is a court and the law is followed here vehemently.

 

The magistrate then quotes relevant provisions on telling lies and guides that he will not allow such lies anymore.

 

State advocate objects: It is not fair to call the State witness a liar.

 

Court: The reason why such is arising is because the state witness is not telling the truth. When you are brought to court, you stop being state but an individual and once jailed, it is you alone as state witness and family to face the punishment. I will use the law and follow the law and nothing otherwise.

 

Witness: I am not telling lies…I never went to the accused’s house on that night but only pursued him on the same night.

 

Court: Are the allegations by defense counsel true that you went to the accused’s house?

 

Witness: I did not go there but pursued him.

 

Court: Are you implying that you were chasing the accused?

 

Witness: I followed him.

Defense: Was the accused driving for him to be pursued?

 

Witness: I don’t know if he was driving.

 

Defense: Now your testimony here…is contrary to your reports.

 

Witness: I was not at the accused’s house.

 

Defense: According to the report you wrote, four others were arrested. Where were they arrested from?

 

Witness: At Mr Hichilema’s house.

 

Defense: Who arrested them?

 

Witness: other officers, not me.

 

Defense: Were you with Mr Musamba Chime, Hamweene?

 

Witness: I was not with them but I was with several officers and one of them is officer Mr Chirwa. I don’t know his first name but from police force headquarters.

 

State advocate rises and says they feel uncomfortable that the report on how the accused was arrested should be produced in court.

 

Court: The court has the right to have the report if it is to make a judicial decision. The court has power to ask for any document especially when a witness is telling lies.

 

Defense: It seems the state witness is carrying a gun and I am not comfortable.

 

Witness: I am also not comfortable that the defense is saying I could be carrying a gun.

 

[Defense lawyer Mwiimbu requests that the matter goes to the chambers momentarily].

 

Court: We are ready to conclude this matter but issues rising may prolong it.

 

Court adjourns and resumes after 15 minutes

 

Witness: I was at the accused’s house but I did not enter the premises. Before I could enter the house, I pulled out and went there the following day around 11 hours.

 

State witness apologizes for telling lies in court, adding that it was not his intention to mislead the court and that he has been standing for too long hence cheating.

 

State advocate: What the state witness has said is the correct position.

 

Defense: We have taken note of the state witness apologising that he misled the court. This apology is part of the recordings and apology accepted.

 

Magistrate jolts down his ruling over the apology and lies made by state witness.

 

Court: We have taken into account the apology by the State witness for telling lies in court which is tantamount to perjury. The  State witness must tell the truth. Courts are there to dispense justice. So it is not the duty of police to convict people but take suspects to court. You State witness [Mbita], being a Police Intelligence officer, has no powers to convict but only to take suspects to court. You must tell the truth.

When one is a witness, he stops being the state but a mere witness and that witness should stop thinking that the State is there to protect him for telling lies. If you tell lies again, you will be punished and if you don’t want to be punished, you should lobby through parliament that the laws be changed at parliament by lawmakers.

 

Cross examination continues and defense lawyer Phiri on the floor

 

Defense: Are you aware that the accused’s house was raided by the Police and the four hours was meant to carry out the operations?

 

Witness: I was not aware; I did not get into the yard.

 

Defense: How long did you stay outside the yard of the accused?

 

Witness: For about 45 minutes. After that, I left for other assignments.

 

Defense: Where were those stated assignments?

 

Witness: other assignments were not to be worked on at the accused’s house but elsewhere.

 

Defense: Was it on the same night the four other accused were apprehended?

 

Witness: It was not me who arrested them but I charged them for the three counts, including treason.

 

Defense: Was the officer named Chirwa from police force headquarters there?

 

Witness: I do not know.

 

Defense: Which other people were at the gate?

 

Witness: I saw Mr Garry Nkombo [Mazabuka Central member of parliament], Sylvia Masebo and some more people.

 

Defense: Did you see a group of people at the gate of the accused’s house who were planning to cause confusion?

 

Witness: I saw the people but I was not the one leading the operations.

 

Defense:  Was there any breach of public peace at the accused’s house when you went there?

 

Witness: There was no breach of peace. It was calm and there was no disturbance.

 

Defense: Having found the environment calm and peaceful, you and others did not leave the place, did you?

 

Witness: We left around 12:00 hours.

Defense: Why did you stay for that long when it was calm and when you are not the one who was leading the operation?

 

Witness: It was officer Chirwa who was in charge.

 

Defense: What was the reason for being at a place which was calm? Was the gate closed or not?

 

Witness: There was a reason for being there and the gate was intact.

 

Defense: Did you ever had any form of interaction with the accused before arresting him?

 

Witness: I never had any interaction with him.

 

Defense: Since the accused does not know you, there is no way he was going to insult you.

 

Witness: Yes.

 

Another defense lawyer, Inambao, takes the floor

 

Defense: What time did you arrive in Lusaka from Mongu?

 

Witness: The following day after the Kuomboka ceremony.

 

Defense: Who opened the docket for the accused?

 

Witness: It was not me; I am not sure who did.

 

Defense: You were the arresting officer. Who could be the complainant in this matter and who did you record the statement from?

 

Witness: There was no complainant that the accused should be arrested…the State was the complainant.

 

Defense: In your docket, is there any independent witness to that effect other than the Police?

 

Witness: There is one media house…Prime Television…and also ZNBC.

 

Defense: What did you hear as the alleged insulting language? If officer Musamba Chime was to be called in court and asked whether the insulting language was as put, would you confirm?

 

Witness: Yes, but I may not say the exact insulting language but may be close.

 

Defense: What did you carry when you went to the accused’s house on 11th April, 2017?

 

Witness: only a notebook.

Defense: You have not mentioned that you carried a pen too.

Witness: Yes.

 

Defense: You have not produced any accurate information you recorded from the accused on how he used the insulting language.

 

Witness: I have not produced any evidence.

 

Defense: Was there any handover of powers on whether you should arrest the accused?

 

Witness: There was no handover of power. I just went ahead and effected an arrest.

 

Defense: Are you aware that any operation must be well organized? After receiving intelligence information, did you go there to assess the situation?

 

Witness: Yes.

 

Defense: You went there to assess and not arrest, is it not so?

 

Witness: I went there to assess and not arrest, but I arrested.

 

Another State witness, Aubrey Hamweene, comes up for cross examination

 

Witness: When I heard the insulting language, I was injured and wanted to charge at the accused to beat him up.

 

State advocate: What role did you play?

 

Witness: I escorted the team that arrested the accused to Woodlands Police station.

 

State advocate: Are you able to recognize the accused?

 

Witness: He is in the dock.

 

Court adjourns the matter to 14:00 hours and also reminds the state advocates to tell the court who is in charge of the Police at court.

 

Matter resumes at 14:00 hours                

 

State advocate brings forward the assistant commissioner Bothwell Namuswa as earlier in the morning, he was unable to access the court.

 

Court calls in Namuswa and directs police to relax the scrutiny of who enters the court premises.

 

Court: It will not be helpful for police to block people coming to court. The spiral effect has been congestion in prisons.

 

Namuswa: I will inform the officers to abide by the court ruling.

 

Cross examination of Hamweene continues…

 

Defense lawyer Mwiimbu: Counsel Keith Mweemba and Marshal Muchende will lead.

 

Defense lawyer Muchende takes the floor

 

Defense: Witness, confirm that the words you heard from the accused were that ‘you dogs get out of the my yard’?

 

Witness: Those were the words said.

 

Defense: Where was this said?

 

Witness: It was at the accused’s house.

 

Defense: Is this property (Hiichilema’s house) secured by a fence?

 

Witness: Yes it is fenced.

 

Defense: Is it true that you entered the yard?

 

Witness: Yes.

 

Defense: Did you go near the door of the accused’s main house?

 

Witness: I did not go close to the door of the main house but I was inside the yard.

 

Defense: Did you have a warrant to enter the accused’s yard?

 

Witness: I did not.

Defense: Was the property you entered private or public?

 

Witness: It was private.

 

Defense: Read the last part of the indictment.

 

State witness reads:…likely to cause the breach of public peace.

 

Mweemba takes over cross examination

 

Defense: If someone said you were inside or outside, would they be lying?

 

Witness: I don’t know.

 

Defense: Would you agree that the indictment is written in direct or direct speech?

 

Witness: I don’t know

 

Defense: The statement that ‘get out of my yard’ and ‘remove these dogs’, is it the same?

 

State: It is not.

 

Defense: Who was in charge of operation?

 

Witness: officer Musamba Chime.

 

Defense: This is not the same statement. Are police officers allowed to beat up people?

 

Witness: No

 

Defense: Is there any evidence in form of pictures or audio that the accused used insulting language?

 

Witness: I do not have other than oral evidence.

 

Defense: Is there any evidence from you which could be on false implications?

 

Witness: I only have oral evidence…I don’t know whether such evidence exists or not.

 

Defense: You have not told the court the duties of a police officer, have you?

 

Witness: I have not.

 

Defense: You have not told the court whether you recorded any statement or not?

 

Witness: No.

 

Defense: You did not mention lawyers Martha Mushipe and Jack Mwiimbu as having been at the house of the accused.

 

Witness: I mentioned Martha Mushipe but not Jack Mwiimbu.

 

Defense concludes and says he is grateful for the responses given.

 

State advocate: We have nothing to reexamine the state witness.

 

Court thanks state witnesse and asks him to leave court.

 

State advocate: The team wishes to make a submission.

 

The court guides that the submission be put on record, and the defense team said it wishes to continue with the matter.

 

Magistrate says he has heard that the State advocates wants to make submissions but that he will not allow as both parties have expounded the matters.

 

Court adjourns the matter and resumes after 10 minutes for a ruling

 

 

Court: The task of the court is to state whether the accused has a case to answer or not. The verdict is two-fold: case to answer or case to answer depending on the evidence. The evidence by the State witnesses shows that they had an interaction with the accused at his house. The defense team showed how the state witnesses behaved… one of the witnesses showed lack of professionalism on the part of the police. State witness Mbita struggled to give evidence…

 

The court then placed Hichilema on his defence.

 

Matter adjourns and resumes after 10 minutes as requested by the defense team.                       

 

Defense: our client has exercised his constitutional rights to remain silent, and he will not call any witnesses. The defense team will not add anything but rely on the guidance and ruling of the court.

 

State advocate: We still feel we should make a written submission before the court as the team representing state witnesses.

 

Court directs that if any submission is to be made, it should be on or before 10:00 hours today.

 

Judgment has been set for Monday, May 15.

 

 

 

 

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