Prosecution failed to build case against HH – magistrate Malumani

Verbatim of the judgment delivered by magistrate Greenwell Malumani in Hakainde Hichilema’s insulting case continued from yesterday.



Magistrate Malumani:


I have carefully examined all the evidence on record, from the evidence adduced, I find the following facts not in dispute.


On the night of 10th April, many police officers visited the accused’s house off Leopards Hill Road in Lusaka. They were there until they apprehended him in the morning of the following day on 11th April, 2017. All the four prosecution witnesses are police officers. They were present at the accused’s house when he was apprehended. It’s in fact PW3 who is the arresting officer. Apart from these police officers, there is no independent witness who testified. All there is in terms of evidence is oral evidence of what the police allege the accused said against his denial. In spite of the claim that the offence of use of insulting language was reported to Kabwata Police Station, no police officer from that police station was called to testify in this matter, neither was any evidence led or given to demonstrate that there was a formal investigation by way of a complaint being recorded in the Occurrence Book at a police station and witness statements taken down by the arresting officer. It is not in dispute that assistant superintendent Mpanzi Mbita is not only the arresting in the case of use of insulting language. He was the arresting officer on all the three counts that the accused were charged with which includes treason and disobedience of lawful orders. And from the evidence adduced, the arresting officer went to Western Province on 8th April, 2017 on security duties which had nothing to do with the offences the accused are facing. He left in the night of 8th April, 2017 back to Lusaka. It is not in dispute that he never went back to Western Province to investigate these offences and never recorded any statements from any person whatsoever. All he did is watch television and based on what he saw on television, he arrested and charged the accused with three offences he is facing. Of course, he purports to have carried out investigation. But this claim has no veracity from what the evidence on this matter reveals.


Admittedly, it is within the powers of the law enforcement agencies to originate any injury on suspected crime. It is not always that there is a complainant not withstanding an arrest should always be made after positive investigations have been made. The investigations must first yield positive results. In the case of R. Siuluta V The People, the court condemned blatant abuse of police powers where a suspect is first detained and thereafter begin making inquiries. The principle established is that the police has no power to arrest for the purpose of making inquiries. In Daniel Chizoka Mbandangoma V The Attorney General, the government was condemned in damages arising from a criminal matter where the plaintiff was detained purely for investigations. I find it desired to highlight the law governing police investigations in the light of very frightening revelations made by the arresting officer in this matter. The evidence elicited for vide cross examination by the defence counsel intends to establish that the police detained the accused without any investigations carried out and thereafter started looking for offences to charge them. And even after this, no investigations were carried out. This paints a very gloomy picture of lack of professionalism by Zambia Police insofar as the evidence revealed in this matter.


I make this observation because PW3 was the arresting officer in all the offences and made one report, which the defence heavily attacked during cross examination. The prosecution counsel from the National Prosecutions Authority found it hard to rebuild the damage on re-examination much as they were equal to the task. No one can blame them, there is nothing to defend. However, narrowing down to the case of use of insulting language before, the dispute is purely on whether the offending words were uttered by the accused person or not. And as hitherto alluded, this dispute is essentially centered on the words of the police officers and the denial by the accused. Before I deal with the dispute, I must state that there ought to be no doubt that the law is very clear and poses no ambiguity on what constitutes ‘Use of insulting language under section 179 of the Penal Code Chapter 87’. In their submissions, the prosecution were on firm ground to state that insulting words should not just be rude or offensive but insulting as held in the English Case of R. V Ambrose.



They support that same view with the case of Brutus V Cozens in which the court held inter alia, that the meaning of an ordinary word of English language is not a question of law but fact. I was also referred to the Case of Southand V The DPP when the court set a principle that the words ‘F*** you’ or ‘F*** off’ are potentially abusive regardless of the person to whom they have been addressed and may relate to the subject charge. In attempting to counter the glaring contradictions, inconsistences and outright lies told by the prosecution witnesses, the prosecution counsel referred me to the two cases of George Musupi V The People and Kambarange Mpundu Kaunda V The People. The gist of the submission is that the court should not entertain the argument of possible interest to serve on the part of the witnesses who testified being all from Zambia Police because they were in the course of duty. It has been argued that the accused uttered the offending words and the witnesses were offended. I took time to examine these authorities but find no weight in the purported argument…All through the evidence elicited vide cross examination, the defence counsel belaboured at great length to demonstrate lack of credibility, malice, falsehoods on the part of prosecution witnesses who are all police officers. I must state that if the prosecutions were serious, they could have led evidence at least from police stations where the complainant purportedly lodged the complaint of insults. No police officer was called from Kabwata Police Station, the puzzle I have is why? The Occurrence Book could have been produced in evidence to demonstrate consistency.




To the contrary, the arresting officer who claimed to be a complainant also dealt with the whole process of the case. In a full-fledged justice system, how can a public officer act in his own cause? Where is the need for professionalism? Is that ethical? You can’t be a judge in your own cause unless you point to a clear pedigree in support. It is like a magistrate lodging a complaint at a police station, when the matter is brought before court, he accepts to sit as a magistrate to try the accused. PW3 purported that after investigations, he made up his mind to arrest and charge the accused.


How in devoid of any witness statements, without a complaint lodged at a police station? The case of George Musupi Vs the People, the Supreme Court set a principle that a court cannot convict without a warning where the evidence reveal a possibility of false implication. The said principle was echoed in the murder case of Kambarange Mpundu Kaunda and the accused acquitted. The principle intended to guide the court to exercise care where only witnesses called by the prosecution are those of some relationships with the complainant in simple terms or victim. In the Kambarange Mpundu Kaunda case, the eyewitnesses were relatives or friends of the deceased. The court found that they had a possible bias against the appellant and as they were, the subject of the initial complaint by the appellant. The Supreme Court found the High Court judge to have misdirected himself and deal with the issue. On the matter in casu, the witnesses are not only the police officers but people who have not shown to be creditworthy. PW3, the arresting officer as noted on a number of issues discounted himself from reliability. He wantonly told lies about the manner he conducted investigations. Above all, he claims to be a complainant on one hand. How they can be not have a possible bias. As observed earlier, no investigations were indeed carried out on all the offences he charged the accused.



How then can it be said that he had no possible bias and interest can tell lies on oath and apologies. How can a court place reliance on him. The prosecution have failed to convince me as to why I should believe these witnesses. They have failed to dispel the high risk of malice exhibited by the witness especially the arresting officer. Invariably, I find that the prosecution witnesses had possible bias in this case. The danger of false implication cannot be ruled out. The prosecution finally made reference to the case of Machipisha Kombe V The People arguing that the facts reveals evidence of something more by way of what they called odd coincidences. I was urged to deem as evidence constituting odd coincidences the assertion by PW3 that after offending words were uttered, lawyer Martha Mushipe confronted them with clenched fists.




That he had to restrain himself. Now as repeatedly stated, PW3 is not a creditworthy witness. He made himself not reliable. What he said cannot be a basis for me to accept the foregoing argument. As demonstrated by the defence counsel in their final submissions and in fact as already alluded to, where no independent witnesses testifies there is need for the court to warn itself. In the absence of that, there must be evidence of something more which was also stated in the case of Emmanuel Phiri V The People in support of the submissions that where the prosecution know of some evidence or a witness who may speak in favour of the accused, the defence must be informed. It was buttressed that the State deliberately withheld such evidence in the investigations and arrest report which exposed some of the lies by PW3. It was argued that there could have been other evidence withheld by police and this offends the principle adumbrated above and echoed in the case of John Nyambe Lubinda V The People. I must state that the Lubinda authority will not apply in the absence of evidence that the defence knew of some other evidence favourable to the accused. The defence were speculating on this argument.



The defence further cited the case of The People V Peter Thomas Lomdom Tembo (HP/36/1999 unreported) in which his Lordship Silomba J had this to say. ‘The behaviour of the police must be condemned, it is time they moved away completely from the notion that anyone brought to the police station is guilty of the crime complained of. They should always be wary of the fact that there are, in our communities sadists who are interested in seeing others suffer even for crimes they did not commit. That certain complaints are filed with the police based on petty jealousies while others arise out of sheer vengeance. As a professional body, the police are encouraged to be objective in their investigations and only bring cases to court that merit prosecution. I believe that with an alert team of State advocates the police would be guided a great deal in following up cases, especially where they are confident of securing convictions. In that way, the number of cases before courts will be reduced as only deserving cases will be prosecuted and overcrowding in prisons will be curtailed. This was an orbiter dictum by justice Silomba as he then was when condemning police on shoddy investigations. Very little more can be said. I addressed this point after I found that no investigations were ever carried out in this matter. PW3 took it upon him to be a complainant, police station and arresting officer. He has painted Zambia Police with a gloomy picture of abuse of power which ought to be condemned.



Finally, the defence referred me to the case of Phiri V The People in which it was affirmed that courts are required to act on the basis of evidence placed before them. If there are gaps in the evidence, they are not permitted to fill them. That if there is insufficient evidence to justify a conviction, there is no alternative but to acquit the accused.



And if this takes place because evidence, which could and should have been presented was not, a guilty man has been allowed to go free not by the courts but by the investigating officer.



I perceive this authority not debatable on the circumstances of the matter before me. Courts cannot bear the blame for the failure of the law enforcement agencies to conduct fair and credible investigations. The police have a duty to bring before the courts all relevant information whether favourable or prejudicial to the suspect. This is what a fair and credible investigation is. This was inter alia established in the case of Phiri and others V The People.



In the light of the foregoing, I come to the inescapable conclusion that owing to the glaring contradictions, inconsistences, lack of credibility, malice and possible collusion exhibited by the prosecution witnesses in this matter, there is a serious doubt on the prosecution case. The investigations were shoddy if they can be called investigations at all. This is a case where investigations officer Mpanzi Mbita was literally short of stating that he has no single grain of evidence against the accused persons on all the three offences of treason, disobedience of lawful orders and use of insulting language. Police action unequivocally lacked professionalism in the dispensation and administration of justice.



Now, I must state that we have a full-fledged legal system in our country, as such our laws are not only clear but predicable.



That is the efficacy of precedents. You can tell well in advance what decision the courts will make right at investigations stage. The prosecution should have foreseen this.



Article 18(2) (a) of the Republican Constitution poses no ambiguity. Every accused person who is charged with a criminal offence shall be premised innocent until proved guilty before a court of competent jurisdiction. So, it is the duty of the Staten to prove the guilty of the accused from the beginning to the end as held in the case of Mwewa Murono V The People by the Supreme Court of Zambia.



This has been a principle in all commonwealth jurisdictions as espoused by the court in the English case of Woolington V The DPP. This was a landmark decision by Lord Justice Viscount Sankey as he then was. It is on this basis that an accused is not bound even to speak in his defence. Article 18(7) of the Constitution states; a person who is tried for a criminal offence shall not be compelled to give evidence at his trial. This provision is augmented by section 207 of the Criminal Procedure Code Cap 88 on the rights of the accused persons when found with a case to answer. They can choose to give evidence on oath, give an unworn statement or remain silent. Further, under section 99 (1) of the Criminal Procedure Code Cap 88. An accused facing a misdemeanour type of offence punishable with a fine or imprisonment of up to three months like this case can even choose to dispense with personal attendance with consent of the magistrate. As illustrated herein, the burden is purely on the prosecution to prove the guilt of the accused. The doubt occasioned can only be and is hereby accorded to the accused person. The prosecution have failed to prove the guilt of the accused beyond all reasonable doubt. I thus find him not guilty of use of insulting language contrary to section 179 of the Penal Code Chapter 87 of the Laws of Zambia. I acquit him forthwith and set him at liberty in respect of this offence.


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