Hamasaka’s detention was unconstitutional- admits state witness

The State witness in a case in which ex-Evelyn Hone College Head of Media Studies Department Clayson Hamasaka is charged with being in possession of obscene materials admitted that his detention was illegal and unconstitutional because the police went ahead to detain him even when they had not established a case against him.

During cross-examination, Inspector Andrew Ngambi who was the arresting officer and the last witness also told Lusaka Magistrate Obster Musukwa yesterday that they searched Mr. Hamasaka’s house using the Drug Enforcement Commission (DEC) search warrant upon acting on certain information from some unnamed sources.

Inspector Ngambi told the court that after a thorough search, they found nothing criminal in his house but seized laptops, flash disks, and CDs, and took Mr. Hamasaka to Police Force Headquarters.

“At the police headquarters, some of Mr. Hamasaka’s laptops were opened and scrutinized in the presence of his lawyers, family members and the combined team of Zambia Police and DEC officers and in his presence nothing incriminating was found,” he said.

The court also heard that after going through some of the computers in a transparent manner where everyone was present, it was decided that the search continues the following morning since time had run-out as it was getting dark.

At that stage, Mr. Hamasaka was taken for detention at Woodlands Police Station where he was arrested for defamation of the president, with a view to continue scrutinising computer files in the presence of lawyers, himself, police, and family members the following day.

But that nothing happened from that day until he was merely released on a warn and caution statement for seditious practices.

Mr. Ngambi told the court and defence lawyers comprising Wilson Mweemba of Wilson Mweemba & Co and Keith Mweemba of Keith Mweemba Advocates that he instead proceeded to take the computers to Zambia Information and Communications Technology Authority (ZICTA) for forensic examinations.

During the ZICTA examination of Mr. Hamasaka’s computers Mr. Ngambi told the court that there were no representatives from Mr. Hamasaka’s part as it was only done by security officials.

Mr. Ngambi further confirmed that Mr. Hamasaka’s computers had passwords but the police and investigative wings still managed to open them using the ZICTA forensic work-station.

When asked what had changed so suddenly from where computer files were at first being checked in the presence of all the representatives and nothing was found, to a situation where things were being done secretly and incriminating material was allegedly found, Ngambi said sometimes investigative wings do that.

He also confirmed the ZICTA expert’s testimony that at the time the computers were left in police custody and taken to ZICTA, they were not sealed as per the requirement of the law so as to eliminate the danger of tempering with the contents of the evidence.

When reminded by the defence team that evidence before the court from the ZICTA witness indicated that the laptops were tampered with in Mr. Hamasaka’s absence, Mr. Ngambi said he was not aware but also expressed surprise because he was not the one in custody of the laptops at the police.

He also told the court that what was actually submitted before the court was a preliminary ZICTA report as he was told that a final forensic report would be prepared as the case goes to court.

Mr. Ngambi told the court that a final and mandatory ZICTA report has never been prepared despite the case being in court.

When asked as to whether the president had complained of being defamed for the police to have detained Mr. Hamasaka on that charge, Ngambi told the court that there was no complaint from the president and that he was not the one who wrote that charge at the police station the day Mr. Hamasaka was detained.

He also told the court that at the time of viewing Mr. Hamasaka’s computers in the presence of all parties, there was no material that was found to be defamatory to the president but still went ahead to detain him.

The defence team told the court that from the word go, it was clear that the security wings were on a fishing expedition to find anything that would incriminate Mr. Hamasaka, not matter what. The defence team put it to the witness that the danger of false implication and injecting the laptop with incriminating items was not excluded since the laptop in question was last accessed on the 21st July, 2013 whilst in the custody of the police to which the witness could not deny as the evidence on the court record from the ZICTA witness, Lovemore Cheelo confirms that fact.

Mr. Hamasaka is among the Zambian journalists that were arrested last year for being suspected of being contributing to on-line publications.

He was dismissed from Evelyn Hone College, when opposition UPND president Hakainde Hichilema attempted to feature on Hone Radio station which Mr. Hamasaka was managing.

Upon closing the matter, the defence team told the court that they were more than ready to make their oral submissions right there and then but Magistrate Musukwa directed that this be done in writing by 4th March, 2014 because he had other matters to attend to.

Magistrate Musukwa also requested the state to reply by 18th March so that he could make a ruling on 26th March 2014.

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