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Police can’t search a premise without consent – witness

By Limpo Sitali

A SENIOR POLICE officer on Thursday had difficulties explaining how Oracle Media director Mutinta M’membe obstructed police officers assigned to search her residence in February this year.
Assistant superintendent Albert Chiluwa, 52, of police service headquarters, appeared as a state witness in a matter where Mutinta, 39, is accused of obstructing police officers on duty.

 
It is alleged that Mutinta on February 15, in Lusaka willfully
obstructed or resisted Japhet Mulenga from lawfully executing a search warrant of a magistrate court.

 

Appearing before magistrate Faides Hamaundu, Chiluwa narrated that on the material day around 17:00hours, he was amongst a team of officers assigned to execute a bench warrant to plot number 7345 Nangwenya road in Rhodes Park, at Dr Fred M’membe’s residence.

 

 

Chiluwa told the court he was in the company of other officers, among them Japhet Mulenga who prepared the warrant.

 

 

The court heard that when the officers arrived, they found a security guard who told them that Dr M’membe was not around and that he had travelled out of the country.

 

Chiluwa testified that they decided to enter the premises despite the guard’s response.
He said the guard had called someone on phone although he did not know who it was and that a few minutes later, he saw a lady driving towards the gate at great speed.

 

Chiluwa recalled that the lady, whom he came to know as Mutinta, the wife to Dr M’membe, started shouting on top of her voice and asked the officers to get out of the yard.

 

 

And when cross examined by defence lawyer Mulambo Haimbe, the witness recounted that on February 15, the accused tore a search warrant that officers needed to execute at her residence and that therefore the warrant became defective.

 

The court heard that the search warrant was torn in two pieces.
However, Haimbe put it to Chiluwa that the warrant, despite being torn, was legible.

 

Another defence lawyer, Keith Mweemba asked Chiluwa if a torn search warrant loses its validity and the witness responded in the affirmative.

 

However, when asked to cite an authority in law, Chiluwa said he did not have any.
The court heard that Chiluwa did not have any video evidence of Mutinta tearing the warrant but that the arresting officer instead would provide.

 

Meanwhile, another lawyer Sashi Kateka put it the witness that he, together with other police officers, manhandled Mutinta out of the yard on the material day.

 

In response, Chiluwa said the officers pursued the accused because she tore the warrant.

 

And asked if it was right to conduct a search in the absence of the owner of a residence, Chiluwa said one is not able to proceed with the search unless there is consent.

Below is the verbatim of cross-examination of Chiluwa by Mutinta’s lawyers:

 

Kateka: Are you able to proceed with a search in the absence of the owner of the residence?

 

Witness: In the absence of the owner of the residence, one is not able to proceed with the search. There must be consent.

 

Kateka: I will put it to you that you forced your way into the premises.

 

Witness: Not to my knowledge, I am a very experienced officer.

 

Kateka: How many officers were there, how many were you?

 

Witness: About six of us.

 

 

Kateka: You said the guard had informed you that the owner of the house had travelled out so why did you enter the premises?

 

Witness: We entered the premises for negotiation purposes with the guard, we also wanted to avoid curiosity from members of the public, as you know Nangwenya road is a very busy road.

 

Kateka: Did you find out who the guard called on the phone?

 

Witness: Yes we did, we were told he called the madam.

 

Kateka: You told this court that you saw a lady driving in at great speed. How did you see the lady driving in at great speed if you were inside the gate?

 

Witness: The gate was partially opened. Even the sound could tell that the vehicle was moving very fast.

 

Kateka: When the accused came to where u were, she asked you to move out and wait for her lawyers. Why didn’t you leave?

 

Witness: We could not leave the yard because we were armed with a warrant. The combatants only entered the yard after they heard noise.

 

Kateka: Are you aware that you are not the first witness to testify in this matter? We were told that you moved closer to the house.

 

Witness: We moved closer to the house when the owner came and tore the warrant.

 

Kateka: At what point did you go closer to the house?

 

Witness: When she ran to the house, we followed her.

 

Kateka: Approximately how many were you?

 

Witness: Almost 20 of us.

 

Kateka: Can you confirm the combatants were armed?

 

Witness: Yes your honour.

 

Kateka: How did you pursue her (the accused)?

 

Witness: We also ran because anything could have happened, maybe she was armed she was going to finish us.

 

At this point Chiluwa was warned to restrict himself to questions being asked.

 

Kateka: What did you do? What steps did you take?

 

Witness: She tore the warrant so she was told to accompany us to the police.

 

Kateka: Is it true that she was manhandled out of the yard?

 

Witness: Not to my knowledge.

 

Kateka: I will end here your honour, counsel Haimbe will take it up.

 

Haimbe: Witness, you said the accused arrived and started shouting. Is it possible for one to know the purpose of police presence when they have not been informed?

 

Witness: No.

 

Haimbe: I put it to you that the accused arrived and shouted before she was given the search warrant. Can a person who has not known the purpose of police presence resist?

 

Witness: No.

 

 

Haimbe: At the point when she tore the warrant, she was told to
accompany officers to the police station, why?

 

Witness: Because she committed a crime.

 

 

Haimbe: Now tearing the warrant became the focus of attention right?

 

Witness: Yes your honour.

 

Haimbe: Is the accused person not allowed to have lawyers as she asked for you to wait for the lawyers?

 

Witness: It is her right, she’s allowed.

 

Haimbe: By asking you to wait for her lawyers, did the accused resist or obstruct you?

 

Witness: Yes she obstructed.

 

Haimbe: Are you sure the accused obstructed you by asking you to wait for her lawyers?

 

 

Witness: No. It is not resistance

 

Haimbe:  The accused person cooperated when lawyers came, yes or no.

 

Witness: Yes your honour.

 

Haimbe: The next day, officers went back to search and they managed without any problems because lawyers were present, correct?

 

Witness: Yes.

 

Haimbe: Witness, can you read the contents of the search warrant, the same torn warrant.
Witness reads the contents of the torn search warrant

 

Haimbe: The search warrant, despite being torn, was legible because you still read it.

 

Witness: Yes I can still read it though with difficulties.

 

Haimbe: Cite a provision which says a torn warrant can’t be brought to court.

 

Witness: I don’t know any provision but the warrant became defective as soon as it was torn

 

Haimbe: I have no further questions your honour, my colleague will take it up

 

Keith Mweemba: A torn warrant does not lose its validity, does it?

 

Witness: It does.

 

Mweemba: Cite an authority according to law.

 

Witness: I have no authority.

 

Mweemba: Since you have no authority, you know.

 

Witness: I don’t know

 

Mweemba: How long have you been in the police service?

 

Witness: 26 years your honour.

 

Mweemba: Are you aware that you have the power to break and open the premises you want to search as long as you have a warrant?

 

Witness: Yes we have that power.

 

Mweemba: You could have done that. Did You?

 

Witness: No.

 

Mweemba: It’s a fact that officers struggled to get the warrant from the accused.

 

Witness: No. There was no struggle.

 

Mweemba: Where you a court official when you went to the accused place.

 

Witness: Yes

 

Mweemba: Any authority.

 

Witness: Nothing.

 

Mweemba: You had a cameraman in your midst.

 

Witness: Yes but he wasn’t under my control.

 

Mweemba: You didn’t chase him as police?

 

Witness: No he was doing his job.

 

Mweemba: Is there any evidence of the warrant being torn?

 

Witness: Yes it’s in the footage.

 

Mweemba: None of the officers tried to grab the document from the accused.

 

 

Witness: No

 

Mweemba: Did you finally manage to search? And you found what you were looking for?

 

Witness: Yes the following day and we found a printing machine belonging to The Post in liquidation.

 

Mweemba: How do you know that the said machine belongs to The Post?

 

Witness: The liquidator identified it.

 

Mweemba: Which liquidator? Who?

 

Witness: I don’t know his name.

 

Mweemba: Laughs! You don’t even know the name of the liquidator? His name is Lewis Chisanga Mosho. Your honour I don’t want to get in those issues, I have no further questions.

 

State prosecutor Zacks Yuma adjourned the matter to September 6, 2017 for continued trial.

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