Zambian Eye Analysis | Lusaka
The continued detention of opposition leader Brian Mundubile, his running mate Makebi Zulu and 16 co-accused without the treason allegations proceeding to court has raised a difficult constitutional question: how long can the State keep suspects in custody while investigations continue, and what lessons can be drawn from Zambia’s previous treason cases?
The State argues that treason investigations are complex, require extensive inquiries and consultations, and cannot always be concluded quickly. In opposing the group’s constitutional bail application, it has referred to previous cases involving Edward Jack Shamwana, Christon Tembo and President Hakainde Hichilema.
But there is an important distinction at the centre of the debate.
The length of a criminal trial is not the same as the length of time a person spends in detention before the case is brought before a court.
That distinction does not establish that the State has acted unlawfully in the present matter. Nor does it establish that the accused are entitled to automatic release. It does, however, raise a legitimate question about whether the historical comparisons answer the particular concern now before the courts.
With the constitutional bail application scheduled for October 28, 2026, the issue deserves closer examination.
What exactly is the State arguing?
In an affidavit opposing constitutional bail, Assistant Superintendent Saviours Hakumbi of the Zambia Police Service’s Fraud and Cyber Crimes Unit argued that treason cases generally take a long time because of the complexity of investigations.
The State has asked the court to take judicial notice of the time taken to conclude the Shamwana, Christon Tembo and Hichilema cases.
It has also argued that the court should consider the seriousness of the alleged offences, possible risks of absconding, public safety and the period already spent in custody when deciding the application. The State has raised procedural objections concerning the parties to the constitutional proceedings as well.
These are arguments for the court to consider. The State is entitled to investigate serious allegations and to prepare a prosecution supported by evidence. A treason investigation may involve multiple suspects, witness statements, communications, financial records and other material that takes time to obtain and assess.
The question is not whether complex investigations are necessary. They can be.
The question is whether the time required to investigate necessarily answers the separate question of continued detention without the treason case proceeding before a court.
To assess that argument, the historical cases need to be considered in their proper context.
1. The Shamwana treason case: a long trial that went through the courts
The case involving Edward Jack Shamwana and others is one of Zambia’s most significant historical treason prosecutions.
The case concerned allegations of a conspiracy to overthrow the government by unlawful means during 1980. The prosecution alleged a number of overt acts, including activities relating to the recruitment of people for an illegal army.
The proceedings became a lengthy and complex trial. The reported Supreme Court judgment records that the High Court trial commenced on November 2, 1981, and judgment was delivered on January 20, 1983. The record ran to approximately 5,500 pages, and the prosecution called numerous witnesses.
The trial resulted in convictions for several accused, while others were acquitted or faced different outcomes. The convictions were subsequently considered on appeal by the Supreme Court.
The case demonstrates that a treason trial can require extensive preparation, a substantial evidential record and a prolonged hearing before a final outcome is reached.
However, it also demonstrates something relevant to the present debate: the period spent conducting a trial is a distinct procedural stage from the period before a prosecution is brought before the court.
The Shamwana proceedings were not resolved quickly. But once the High Court trial commenced, the accused were subject to a judicial process in which evidence was presented, legal arguments were heard and the court reached decisions.
That is the distinction that matters when the State invokes the case to explain the current detention.
The historical trial supports the proposition that complex treason proceedings can take time. On its own, however, the length of that trial does not establish how long suspects in a different case may properly remain in custody before their case proceeds before a court.
The circumstances, investigative steps, evidence and procedural history of each case would need to be considered separately.
2. Christon Tembo and the historical treason prosecutions
The State has also referred to the treason case involving Christon Tembo.
That case belongs to a different political and historical period, and it should not be treated as interchangeable with the Shamwana proceedings or the current allegations against Mundubile and his co-accused.
The broader lesson from historical treason prosecutions is that the State may need to investigate alleged conspiracies involving several people and complex factual questions. Such cases can place substantial demands on investigators, prosecutors, defence lawyers and the courts.
But historical comparisons must be precise. To determine whether the Tembo case provides a meaningful comparison, the relevant questions include when the accused were arrested, when they were formally charged, when they first appeared before a court, when the trial began and how the proceedings concluded.
Those dates matter because a case that took years to conclude after a court process began does not necessarily establish that a similar period of pre-court detention is justified in another case.
A historical prosecution may illustrate the complexity of treason proceedings without answering the constitutional question of how long a person may remain detained before the allegations are brought before a court.
A careful legal comparison must therefore examine the procedural history, not merely the total number of months or years associated with a case.
3. Hakainde Hichilema’s 2017 treason case
The 2017 treason case involving Hakainde Hichilema provides another relevant comparison because it concerned a prominent opposition leader.
Hichilema and five others were arrested on April 10, 2017, and charged with treason. The allegations arose from an incident involving the presidential motorcade during the Kuomboka ceremony.
The case proceeded through the courts. Hichilema was detained at Lusaka Central Correctional Facility while the proceedings and related legal challenges unfolded.
The treason charges were eventually withdrawn in August 2017, and the accused were released. The subsequent constitutional litigation reached the Supreme Court in Hakainde Hichilema and Others v Government of the Republic of Zambia, Appeal No. 28 of 2018, decided in 2020.
The case illustrates that even a highly politically sensitive treason prosecution can involve legal challenges and a substantial period before its eventual conclusion.
It also illustrates why the procedural stages must be distinguished.
The Hichilema case was brought before the courts. The accused had a criminal proceeding against them, and related legal questions were litigated.
The current matter presents a different immediate question: the treason allegations against Mundubile and his co-accused have not proceeded to a trial before a court, while their continued detention is being challenged through separate constitutional proceedings.
That difference does not determine the outcome of the current application. It does mean that the Hichilema case cannot simply be cited as proof that a lengthy period of detention before the treason case proceeds is necessarily justified.
The central distinction: delay before court and delay during trial
The historical cases raise a fundamental issue of legal procedure.
There are at least three distinct stages in a criminal matter:
- Investigation: Authorities gather evidence, interview witnesses and assess whether there is a sufficient basis to prosecute.
- Court proceedings and trial preparation: The accused are brought before the appropriate court, and the judicial process begins. Preliminary applications, disclosure, scheduling and other procedural steps may follow.
- Trial and judgment: Evidence is presented, the prosecution and defence make their cases, and the court determines the matter.
A case can take a long time overall because of the complexity of any one or several of these stages.
But the time spent at each stage has a different legal significance.
A lengthy trial may be explained by numerous witnesses, complicated evidence, adjournments, legal arguments and the need to ensure a fair hearing. Before the case reaches court, however, the question includes whether the investigation and detention have been managed consistently with constitutional safeguards.
It is therefore not sufficient to say that a previous treason trial took many months or years and conclude that the current delay is automatically justified.
Equally, it would be wrong to conclude that the passage of a particular number of days automatically establishes a constitutional violation without examining the law, the circumstances and the State’s explanation.
The issue requires a case-specific judicial assessment.
What does the Constitution say about detention?
Article 13 of the Constitution of Zambia addresses the protection of personal liberty. Among its safeguards is the requirement that a person arrested or detained on reasonable suspicion of having committed a criminal offence be brought before a court without undue delay.
Article 13 also addresses release where a person has not been tried within a reasonable time, subject to the applicable constitutional provisions.
These protections are important because an arrest and a criminal charge do not amount to a finding of guilt.
The State has a duty to investigate and prosecute offences where the evidence and law justify doing so. At the same time, the Constitution places limits on the exercise of State power over a person’s liberty.
The seriousness of an allegation is relevant, but it does not by itself settle every question concerning detention.
The relevant legal analysis must consider the applicable constitutional and statutory provisions, the reasons for the detention, the stage reached in the investigation and proceedings, and the circumstances of the accused.
The court must also distinguish between the constitutional question concerning detention and the separate question of whether the prosecution can ultimately prove the allegations.
What is different about the Mundubile case?
Mundubile, Zulu and 16 co-accused were arrested in August 2026 and formally charged with treason on August 29, according to reporting on the case. They were subsequently detained at Mukobeko Maximum Correctional Facility in Kabwe.
By the time the constitutional bail application was heard in October, the treason allegations had still not proceeded to a trial before a court. A separate constitutional challenge has also been brought concerning their detention and alleged violations of their rights. The allegations made in those proceedings remain matters for judicial determination.
The applicants are asking the High Court to order their release, either unconditionally or subject to reasonable conditions. They also seek a declaration concerning the constitutionality of their continued detention.
The State opposes their application and argues that the complexity of treason investigations justifies the time required.
The court will need to assess those competing positions under the applicable law. It is not being asked at the constitutional bail hearing to determine whether the accused are guilty of treason.
Nor would an order granting constitutional bail amount to an acquittal. It would concern their liberty while the legal process continues.
Similarly, a refusal of bail would not amount to a finding of guilt.
This distinction is essential to fair and responsible reporting.
The State’s case: why investigations may take time
The State’s argument should not be dismissed simply because the historical cases were brought before the courts.
Investigations involving multiple accused may require authorities to establish the individual role allegedly played by each person, test the reliability of evidence, interview witnesses and assess material before deciding how to proceed.
A prosecution that is brought prematurely may create difficulties for the State and risk compromising the fairness or integrity of proceedings.
The public also has an interest in serious allegations being investigated properly rather than rushed into court without adequate preparation.
But the need for thorough investigation does not, by itself, answer every question about detention. The court may need to examine what investigative work remains, why it has not been completed, what steps have already been taken and how those circumstances relate to the applicants’ continued custody.
The State’s reliance on historical cases is therefore one part of its argument, not necessarily a complete answer to the constitutional challenge.
The applicants’ argument: investigation cannot become an indefinite waiting period
The counterargument is that the right to personal liberty must remain meaningful even when the allegations are serious.
If the State can rely on the complexity of an investigation without having to explain the circumstances of the particular delay, a constitutional safeguard could lose practical effect.
The applicants’ position is that their continued detention without the treason case proceeding before a court violates their rights. That is their legal claim, not an established judicial finding.
The court will need to assess whether the constitutional and statutory requirements have been met, taking account of the facts and the arguments presented by both sides.
It is also important not to confuse the fact that the applicants have filed a constitutional application with a determination that their detention is unlawful. That determination belongs to the court.
The constitutional proceedings provide a mechanism for the applicants’ claims and the State’s response to be examined judicially.
What happens on October 28?
The constitutional bail application is scheduled to return to the High Court on October 28, 2026, after the State opposed the application and the proceedings were adjourned.
The State has raised arguments concerning the complexity of treason cases, the factors relevant to bail and the proper parties to the proceedings. The procedural questions, as well as the substantive constitutional arguments, will need to be addressed in accordance with the court’s directions. <Cite refs={[“turn825950search2″,”turn825950search7”]}/>
The hearing will be significant because it places the question of continued detention before the judiciary.
Several outcomes are possible. The court could grant release subject to conditions, order unconditional release if the law and circumstances warrant it, refuse the application, or make other procedural directions as permitted by law.
No outcome should be presented as inevitable before the court has heard and determined the matter.
Whatever the result, the constitutional bail proceedings must also be distinguished from the underlying treason allegations, which remain to be resolved through the applicable criminal process.
The larger question for Zambia
The debate extends beyond the political identities of the accused.
It concerns how the State investigates serious offences while respecting constitutional protections, and how the justice system distinguishes between the time needed to prepare a prosecution and the time a person may properly remain detained before the case proceeds.
The Shamwana proceedings demonstrate that a treason trial can be lengthy and complex. The Hichilema case demonstrates that a politically sensitive treason prosecution can involve extended litigation and ultimately end with the charges being withdrawn.
Neither history, considered only in terms of the total duration of the case, automatically resolves the legal questions arising from the current detention.
The relevant comparison must examine the procedural stages, the reasons for delay and the constitutional safeguards applicable in each case.
The State is entitled to investigate serious allegations. The accused are entitled to the protections of the Constitution. Those principles are not mutually exclusive.
The task of the High Court is to consider the evidence and arguments and determine the application according to the law.
As the October 28 hearing approaches, the central question is not simply whether treason cases take a long time.
It is whether the reasons advanced in this particular case satisfy the legal requirements governing continued detention and constitutional bail.
That is a question for the court — and one that should be answered through evidence, law and judicial reasoning rather than political assumption.