“Hichilema’s lawyers should have avoided raising unnecessary preliminary issues to lessen his agony in prison”

Filed under: Breaking News,Politics |


Opposition Green Party president Peter Sinkamba says incarcerated UPND president Hakainde Hichilema’s lawyers should have avoided raising many unnecessary preliminary issues but focus on the main case.

On Friday Magistrate David Simusamba referred the preliminary issues raised by the defence to the High Court for judicial review. He adjourned the matter to June 12, 2017.

But Sinkamba has observed that raising of many preliminary issues will mean more agony for Hichilema in prison who has already spend 47 days.

Hichilema is facing treason charges which will still have to be tried in the High Court after the preliminary issues are addressed and if it is established that the case has merits warranting it trial.

The issue of raising many preliminary happened during the presidential election petition where the main case could not be heard as Hichilema’s lawyers spent 14 days stipulated by the law raising preliminary issues.

In a statement commenting on the ruling by Magistrate Simusamba, Sinkamba says Hichilema’s lawyers should have focused on the main matter in the treason case.

Below is the statement:

We agree with Magistrate David Simusamba when he stated that in the past, a certificate signed by another person other than the DPP but signed in his or her name was accepted and the practice was established. This observation is agreement with one key constitutional provision which Attorney General Likando Kalaluka relied on during the hearing of complaint by the Judicial Complaints Commission (JCC) where we the Greens pursued the removal of five Constitutional Court Judges from sitting on the Constitution Court bench for gross misconduct and incompetence was implied power provided for in Article 271.

Article 271 provides that “a power given to a person or an authority to do or enforce the doing of an act, includes the necessary and ancillary powers to enable that person or authority to do or enforce the doing of the act.” The Attorney General explained that on account of this provision, any constitutional office bearer has power to delegate any one of his or her officers to act in his or her name to do or enforce an act. That is constitutional and therefore perfectly legal. Prima facie, this explanation may as well apply to the DPP, as noted by Magistrate Simusamba.

However, we do not agree with Magistrate Simusamba’s decision to refer the matter for judicial review to determine the validity of the DPP’s committal certificate on account that it was signed by someone else other than the DPP. We disagree with his ruling that the subordinate court has no jurisdiction to comment on the validity of the certificate, and that the committal certificate is the exclusive preserve of the High Court.

To the contrary, we believe Magistrate Simusamba had jurisdiction under 267(4) of the Constitution of Zambia to comment and rule on the validity of the certificate. According to Article 267(4), a court is not precluded from exercising jurisdiction in relation to a question as to whether a person, authority or institution has performed the function in accordance with the Constitution or other laws.
All in all, HH’s lawyers should have avoided pursuing preliminary issues to lessen his agony in prison unnecessarily. Already, over 45 days have lapsed in prison, and his lawyers are still pursuing preliminary issues. This is unnecessarily exacerbating his agony in prison. Instead of pursuing preliminary issues aggressively, it would have been desirable that the lawyers’ focus is placed on the main matter to commence.


5 Responses to “Hichilema’s lawyers should have avoided raising unnecessary preliminary issues to lessen his agony in prison”

  1. We are dealing with a Treason Charge which is very serious and could to lead to the death of the Accused.Why should we rush to Trial in the High Court with a defective DPP Certificate of Committal? The Defence Team is being meticulous to make sure Treason Trial begins with a Valid Certificate. The Defence Team is questioning the validity of the DPP Certificate on the basis that the Treason Charges are vague and the Certificate is not signed by the DPP herself given the severity of the Charges.Practice may not be legal so the legality of the DPP Certificate must be established b4 Trial commences. After the State entered a Nolle Prosqui on the Treason Charge this charge was dropped and the Treason Charges remaining must be made clear and supported by covert activities undertaken by HH and his co-accused to support Treason Charges. The Certificate should make it clear what the Treason Charges are and how HH and others committed the crimes and who played which Role.The definition of a Treason Charge and Role clearity are important b4 Trial begins. The Treason Charge is defined in our Constitution and DPP in their Certificate must explain the Charge clearly.Why is Mr Sinkamba against the HC Review and whose interests is he serving? The Defence Team has done a splendid job so far and people should leave it to do its job properly and professionally.

    May 28, 2017 at 5:15 am

  2. Good explanation to us laymen in law.
    But Sinkamba’s views should not be completely dismissed.

    Concerned citizen
    May 28, 2017 at 6:33 am

  3. Mr Sinkamba seems to contradict himself when he says Mr Simusamba has the powers to Rule on the Validity of the DPP CERTIFICATE of Committal to the HC but refused to do so. Is that not the Reason why the Defence Team should ask the HC to Rule on the Validity of the DPP Certificate b4 Trial begins? Mr Simusamba acknowledged that there were some errors in the Certificate. Those errors should be corrected and the Charges should be made clear and supported by evidence of covert activities undertaken by HH and his Domestic Workers. The Certificate should make it clear what the New Treason Charges are and what Roles HH and others played in committing the Crime. This Treason Charge was initially precipitated by the Mongu Motorcade Rage Incident and since then the State entered a Nolle Prosqui on the Motorcade Charge. After dropping the Motorcade Charge its not clear which are the New Incidents which support Treason. The State should not charge HH and others for Treason based not hearsay. DPP should clean out their Certificate of all errors and make the remaining charges clear so that the Defence Team can prepare for Trial.The Arresting Officer was required to investigate these matters b4 charging the accused but did not do so. We know from the Malumani Trial on the Insult Charge that the arresting officer did not investigate the Treason Charge so how can we proceed to Trial when the procedures are faulty. How can an arresting officer be the complainant,the investigator and the Witness. The HC Judicial Review is necessary to clear all these issues b4 the Treason Trial starts. We see No Reason why the DPP cannot amend her Certificate and if she is not available the Person who signs the Certificate should produce an accompanying Letter signed by the DPP authorising him/her to sign the Certificate on her behalf. Period.

    May 28, 2017 at 8:32 am

  4. please let’s pray 4hh that nothing bad happens to him in prison

    May 28, 2017 at 1:27 pm

  5. He has already spent 47 days,so 12 more days is not a problem .All we want is to set a firm foundation for our defence.Period!We will not follow this Chamba mans advice blindly as doing so would temporarily set HH free but not permanently as our go is.God Bless Zambia.

    Best Cop
    May 29, 2017 at 8:49 am

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