The Lusaka magistrate has acquitted UPND president Hakainde Hichilema in the case of ‘use of insulting language’, saying there was no evidence that he insulted anyone.
Magistrate Greenwell Malumani observed that it was clear that the arresting officer Mbita Mpazi did not conduct any investigations in any of the cases including treason, but watched television and based on his impressions charged the accused with treason and other offenses.
He said there was no independent witness but only oral evidence of what the witnesses said. The magistrate said the prosecution failed to prove the ‘guilt of the accused person and I hereby set him free’.
Magistrate: the accused can only be convicted if he used offensive language to the complaint at a public place or if the offending words would lead the complainant to commit and offense.
In summarizing the testimonies of four state witnesses, Magistrate Malumani noted serious contradictions in the first witness’ testimony and said he also took note of demeanor.
On the second witness, magistrate Malumani said he told the court that the complainant was the arresting officer but later changed his position that the complainant was in fact the state.
“From what it appears, to him, everything in the docket is before the court. I note that he lacks basic knowledge of production of documents in court despite his 22 years of service.”
He also noted contradictions in his evidence.
On the third witness, who was the arresting officer; Mbita Mpazi, magistrate Malumani said he was shocked by Mpazi’s inconsistency.
“I was shocked with the extent of this witness’ inconsistencies. He exhibited great ignorance about how a matter must be brought to court according to the Criminal Procedure Code,” he said.
Magistrate Malumani also said he noted his demeanor and noted that he exhibited arrogance and lack of knowledge of court etiquette.
He said Mpazi gave him an impression that he was not telling the truth and his conduct was regrettable.
” I must state that the conduct of this witness was regrettable. It was clear that he intended to tell lies to the court on oath,” magistrate Malumani said.
He noted that it appeared Mpazi was bent on destroying the prosecutions case.
“I was convinced that he was liable for contempt and that he could be cited for perjury. However, I exercised my discretion to pardon him after an apology was rendered. While that doesn’t destroy his credibility per se, it is my observation that he is not an honest witness. It would appear that he was bent on destroying the prosecutions case both by conduct and by his evidence,” he said.
“He said some other witnesses were Prime TV and ZNBC…It implied that he was watching television and based on the impressions he got, he went to the accused house and apprehended him without recording any statements from any witness.”
On the fourth and last witness, Magistrate Malumani noted that he also drew an impression that he was concealing the truth.
” I was promoted to record his demeanor because he made me draw and impression that he was concealing the truth,” he said.
His testimony augmented the defense’ argument that there was no complaint made on the incident.
I find the following facts not in dispute. Many officers visited the accused house in the night on April 10 and they were there on when he was apprehended on April 11.
No witness from Kabwata police was called and no evidence was read to the court to prove the allegations. It’s not in dispute that Mpazi Mbita was the arresting officer for all the cases facing the accused with includes treason…it is not in dispute that he went back to Western Province to investigate these offenses and he never recorded any evidence from there all he did was watch television and he charged the accused.
He claims he investigated but his claim has no veracity…
This paints a very gloomy picture of lack of professionalism on the part of Zambia Police.
He said no one could blame the prosecution for failing to recover their case after the witnesses testified.
I must state that if the prosecution was serious, they could have at least laid evidence from Kabwata Police station where it was alleged that the case was reported. The occurrence book at least could have been produced in court. The puzzle I have is why?
It is like a magistrate lodging a complaint at the police station and when the matter is brought, he accepts to seat as magistrate to try the case.
The witnesses are not only police officers but they are people who are not creditworthy. The arresting officer has shown himself not to be reliable. He is also a complainant so how then can he be without bias and interest to serve?
If a witness can tell lies and apologize on oath, how can the court place relevance on his evidence?
The prosecution has failed to convince me that there was no bias and malice. The danger of false implication cannot be ruled out.
It is not the duty of police to secure a conviction, there’s is to bring the evidence. The witnesses showed that theirs was to secure a conviction which is most unfortunate.
‘There are some sadists within our communities who want to see others suffer. As a professional body, the police are encouraged to be objective and only bring cases to court that have merit.
With alert prosecutors, I hope that the police can be guided’ this was judge Lomba and very little can be added.
PW3 too it upon himself to be the arresting officer, police station and complainant and this makes a very gloomy picture of Zambia police in so far as abuse of power is concerned.
Courts cannot bare the blame by the police to conduct fair and complete investigations.
In the light of the foregoing, I come to the conclusion that owing to the malice…and possible collusion by the police…
PW3 was just short of saying that he didn’t have any evidence in all the cases including treason.
You can tell right at the investigations stage what decision the court will take, the prosecution would have seen this.
The prosecution has failed to prove the guilt of the accused person and I hereby set him free.
JUDGEMENT IN FACTS…
In the night of 10th April, 2017, the state police officers went to HH’s and they arrested him the following day.
Magistrate Malumani says there is no pictorial evidence that HH used insulting language and that the submissions by state witnesses who are all police officers, there was no single independent person brought to court as witness.
Magistrate Malumani says arresting officer of HH for all charges, Mbita told the court he went to western province for duties and that he never recorded any statement but arrested HH on all charges without investigations.
Magistrate Malumani says it is within the law that always investigations are done before arresting anyone and that investigations must yield positive results.
Magistrate Malumani says cites that police have no powers to arrest and later begin doing investigations but that police must investigate and then arrest .
Magistrate Malumani says the arresting officer of HH and his evidence show that they arrested HH without any investigations but later begun investigations.
He says he makes this submission because Mbita is the arresting officer of HH for all charges including treason but without any investigations. Magistrate Malumani says even state advocates found it difficult to defend the case.
Magistrate Malumani says the law is clear on what constitutes insulting language and that this is supported by many other cases.
Magistrate Malumani says he was reffered to various case by the State advocates that insulting language is an offense.
And in trying to defend lies by the State witness, the state advocates submitted that police witnesses must not be taken that they are interested parties but on duty.
Magistrate Malumani says the evidence listed by defense lawyers shows however that there was no insulting language because no police officer was called from kabwata police station to tell the court that state witnesses reported the matter there.
Magistrate Malumani says how can a police officer be a complainant and arresting officer at the same time?
He says it is like one being a judge and defense lawyer who wants to argue out his own case or interest.
Magistrate cites that the court cannot convict anyone on hearsay.
Magistrate Malumani says in this case, all the witnesses are police officers and and that state witness and arresting officer of HH, Mbita did not investigate the alleged treason charge but arrested HH.
Magistrate Malumani says how can the court rely on evidence by arresting officer of HH, Mbita who told lies on oath and later apologize?
Magistrate Malumani says state witness Mbita told the court that Lawyer Martha Mushipe wanted to beat him but Magistrate Malumani says State witness Mbita is not a credible arresting officer especially that he is the one who arrested HH for treason but without any investigations.
Magistrate Malumani says it was argued that there could be other evidences hidden by state witness.
Magistrate Malumani says the law is clear that it is not the duty of police to convict people but take evidence to court which should lead to convictions.
Magistrate Malumani cites that behavior of police must be condemned because not all those brought to court are criminals but only hated by sadist.
Magistrate Malumani cites justice Lomba that if police can be professional only serious cases must go to court and not crowding prisons .
Magistrate Malumani says arresting officer of HH, Mbita has shown how abuse of power is going about in the country as he is the one who arrested HH without doing any investigations.
Magistrate Malumani says the court has no duty to bare witness to state witnesses who fail to avail evidence.
Magistrate Malumani says due to the state witnesses failure to show any single grain of evidence, police officers failed to show why they arrested HH.
Magistrate Malumani says anyone arrested will be treated as a suspect until proven guilty by the courts of law as enshrined in the commonwealth regulations.
Magistrate Malumani says it is because of such that HH decided to remain silent he can’t say a thing especially that this is a criminal proceeding.
Magistrate Malumani says the burden is on the state to prove that HH did not commit any offense.
Magistrate Malumani says has acquitted HH of insulting language forthwith.