A state intelligence agent Martin Musamba Chime, 43, failed to provide and evidence apart from his word that UPND leader Hakainde Hichilema used words “mother fuckers”, “idiots” and “ass holes” against police officers who went to arrest him.
Defence lawyers led by Keith Mweemba asked the witness why no police officer recorded a statement from him, explaining how HH insulted him.
Below is the verbatim of court proceedings in the case of using insulting language against HH
Witness: I was at the office when we received intelligence information that there were people who were planning to go and cause confusion to the officers who had gone to arrest Mr Hakainde Hichilema, the UPND leader at his house. I was accompanied by Mr Mbita, deputy chief inspector Mulungisha and detective inspector Hamweene. We arrived at Mr Hichilema’s house around 09:20 hours and entered into his premises. Whilst there, his lawyers comprising of Mr Jack Mwiimbu, Chali Muleza, Nelly Mutti, and Ms Martha Mushipe arrived after about 30 mins.
Whilst there, in the company of assistant commissioner of police Paston Mukomongo, we had a chat with Mr Hichilemas lawyer Mr Mwiimbu and Mr Muleza, and informed them why we were there. They promised that they were going to avail their client to us.
Around 11 to 11:30 hours, Mr HH and his family members came out of his house and came close to where we were standing… Where we were standing your honor. He asked who the in charge was. And before we could even answer him, he started showering insults on us the police and I quote, he said: “can you remove all these dogs from my yard! Mother fuckers, idiots, and ass holes”
Your honour, at that point, I restrained myself personally and protested to Mr Jack Mwiimbu so that they can calm down their client to stop insulting us as we were there commissioned.
Mr Jack Mwiimbu went to his client and calmed him down.
To our surprise, Mr Hichilema continued repeating the said insults, which I have mentioned. It was at that point your honour, through his lawyers, we asked him to accompany us to woodlands police station.
Witness continues: From there, Mr Hichilema and his body guards and other people who said they were family members jumped into a Toyota cruiser and went to Woodlands police station.
There were three people who accompanied him, they were male and we told them that they were at liberty to accompany their relative and we proceeded to Woodlands Police Station. Personally, I felt very hurt by those insults because they were very provocative, injurious but I exercised restraint. From Woodlands, we proceeded to Lilayi police where Mr Hichilema was detained at Lilayi Police Post for treason.
Witness then identified Hichilema, but the defense team told him not to get too close to touch him.
During examination-in-chief, the witness said: At Lilayi HH repeated the insults and that he reported the matter to Kabwata Police, before the accused was arrested for use of insulting language.
In cross-examination, Mweemba asked the witness if he had ever been arrested for a criminal offence, to which the state witness answered in the affirmative.
Mweemba: Have you ever been charged and prosecuted by the courts of law for a criminal offense?
Mweemba: What did you do?
Witness: Your Honor, it was on a fraudulent dealing of a motor vehicle.
Mweemba: Who was in charge of the operation? [at HH’s house]
Witness: Mr mokokomongo, and I was the deputy.
Mweemba: you have not produced any court warrant [that allowed you] to conduct an operation?
Witness: We don’t need a warrant.
Mweemba: My question is, have you produced any warrant?
Witness: No ,I didn’t produce a search warrant.
Mweemba: On who’s instruction was the [person] incharge of the operating, according to your knowledge?
At this point, magistrate tells the witness to answer the questions as they are asked and not what he wants.
Witness: there was no superior order on our operation.
Mweemba: So you moved on your own? It was a harp-hazard operation?
Mweemba: We want to know who planned it
Witness: By the time we arrived there, officers were already there.
Mweemba: That was not my question. On whose orders were you operating?
Witness: there was a commander Mr Patson Mukomongo . He was the one in charge.
Mweemba: On who’s orders was he acting for that operation to be legally authorized?
Witness: I don’t know.
Mweemba: According to you, when were you insulted?
Witness: On the 11th of April around 11 or 12 hours.
Mweemba: Who recorded a statement from you about his event?
Witness: I gave a report.
Mweemba: Answer the question
Witness: I am a police officer; I submitted a written report.
Mweemba: So you are saying no officer recorded a statement from you? There was no witness statement from you?
Witness: Yes, I did not
Witness: No officer recorded a statement from me but I submitted a report.
Mweemba: Which officer did you submit the report to?
Witness: Mpazi Mbita, the arresting officer.
Mweemba: How can you submit a report to a person who is part and parcel of the proceedings?
W:itness it does not go like that in police
Mweemba: What is your authority?
Witness: I don’t know
Mweemba: Have you produced it?
Witness: It is with the state
Mweemba: You have not identified this document in this court this morning have you?
Mweemba: You have not even produced it not so?
Witness: Your Honour… it is not in my hands to produce it.
Mweemba: So there is no documentary evidence of the accused having insulted you not so?
Witness: The accused insulted me.
Mweemba: Answer the question
At this point, the state guided the witness to give answers as the questions are put to him and the magistrate insisted that the moment a witness becomes evasive, he was not helping the case.
Mweemba: You are the only witness who can lay a foundation for this document to be produced as evidence and this is supposed to be addressed to the Officer-in-Charge not so?
Mweemba: The person who you submitted the report to is he officer in charge?
Witness: No. But…
Mweemba: Just that. Don’t add anything more
Witness: He is not officer in charge.
Mweemba: In what capacity did you address this report to Mr Mbita?
Witness: Your Honor, may I be guided…
Magistrate: The ranking system does not apply when reporting cases?
Witness: In that case, I submitted to Mr Mbita through the officer in charge
At this point, people in the courtroom burst out laughing.
Mweemba: So clearly, you have told lies on oath, you have changed answers.
Witness: I have not lied. The report was addressed to the officer in charge through Mr Mbita.
Mweemba: In who’s custody is this document?
Witness: As at now they are with the state. With NPA.
Mweemba: Who in particular?
Witness: The NPA is very wide.
Mweemba: You have lamentably failed to produce the occurrence book as evidence to prove that you indeed went to Kabwata police to complain, not so?
Witness: It’s not produced.
Mweemba: Other than your oral testimony, you have not produced any video or recorded evidence?
Witness: It was not recorded but we were insulted.
Mweemba: Is it your position that other than your oral evidence, there is no other evidence?
Witness: That’s true
Mweemba: So it will be your word against the accused’s word?
Witness: Yes, I am here in this court because of the insults
Mweemba: So all there is is your word against the accused? I’m asking because we don’t want anyone to go and manufacture evidence.
Mweemba: So apart from yourself, are you saying that the insults were directed at all the police who were at that house? Mention them.
Witness: It is not possible to mention them.
Mweemba: Were you authorized to damage property?
Witness: No property was damaged.
Mweemba: That’s not my question, my question is were you authorized to damage property?
Witness: You are diverting from the insulting
At this point people continue murmuring, prompting magistrate Malumani to order attendees not to obstruct the proceedings of the court.
The state then interjected, saying, “We object, the witness has already answered that question.
Mweemba: It means the witness has lied on oath that no property was damaged.
Magistrate Malumani: If the witness is not telling the truth and later in the evidence it shows that property was damaged, it will completely destroy the states case because it doesn’t help to lie on oath.
Mweemba: Are you aware that police stole other items?
Witness: I’m not aware.
State advocate: We want to object, what’s the relevance of all these questions outside the offense?
Magistrate Malumani: The defense is in order to ask any question they wish which can destroy the evidence of the witness… according to the authority of Muna Ndulo, the defense can ask any question under cross-examination.
Mweemba: When did you go to the house?
Witness: Around 09:00 hours
Mweemba: Who else was there?
Witness: Detective Mulungisha and detective Hamweene were the people who asked me to accompany them to the accused [person’s] house.
Mweemba: And there was a battalion at the house not so?
Witness: Not a battalion but combatants.
Mweemba: Were there officers in masks?
Wintess: No, everyone was visible.
Mweemba: Was Mr Chipange there?
Witness: Yes, the one in charge of paramilitary
Mweemba was Mr Japhet Mulenga there?
Mweemba: Was he there?
Witness: He was not there, I never saw him
Mweemba: Mr Arthur Shonga?
Witness: He was not there
Mweemba: Mr Nshonkolo?
Witness: He was not there; he was a commandant.
Mweemba: What about others you saw?
Witness: I can’t remember
Mweemba: You have chosen not to remember
Mweemba: The police were fully armed?
Witness: It should be noted that being armed is part of uniform
Mweemba: Were they armed?
Witness: Yes, others were armed.
Mweemba: So in your 20 years of experience, you know this is not the first time the accused is being accused?
Mweemba: You also know that every time you have summoned him he has made himself available not so?
Witness: That’s difficult to answer. I am only speaking about this incident.
Mweemba: You have never been involved in other arrests
Mweemba: You did not have a warrant?
Witness: With my team we didn’t have
Mweemba: And you have not produced any warrant have you?
Mweemba: So there is no legal document in this court that you can use for accountability purposes in this court?
Mweemba: You have not talked about any seizure notice have you?
Witness: I came for the use of insulting language
Mweemba: I’m coming to that, did you have any seizure notice?
Witness: Maybe the arresting officer knows, I just went to beef up
Mweemba: But it is a known fact that property was seized, not so
Witness: I haven’t consulted so I am not aware. The arresting officer knows that
Mweemba: You were second in charge and you want he world to believe that you don’t know the intricate details of the operation?
Witness: I have told this court we received intelligence information
Mweemba: As a result of these so called insults, there was no breach of peace was there?
Witness: No but the insults were there. It’s because we acted professionally.
Mweemba: There was no breach of peace?
Witness: No, we retrained ourselves.
Mweemba: After being insulted, did you commit an offense as a result of those insults?
Witness: No but they were injurious.
Mweemba: Are you literate?
Witness: Yes I am.
Mweemba: You don’t have any independent witness who does not have an interest to serve who can come and collaborate your evidence?
Witness: We were all police officers
Mweemba: I’m taking about an independent witness
Witness: No independent witness apart from officers.
Cross Examination Continues:
Defence lawyer Gilbart Phiri: During the course of your duties, have you been insulted before?
Witness: Yes I have been insulted before but not that much
Defence: Have those matters ended up in court?
Another defense lawyer: Confirm you had no operational order
Witness: It should have been there
Witness: There was no operational order; we don’t need an operational order
Another defense lawyer: You can confirm that you were not happy with the utterances?
Defense: And you never used an independent person to take note of your allegations in this matter?
Witness: My colleagues were there.
Defence: (repeats question)
Witness: Yes, my colleagues were there.
Defence: You can also concede that you don’t have evidence of any call-out [disobeyed by] the accused to warrant the combatants to ransack his premises?
Witness: I am not aware
Defence: Would you know the time when the first officers went to the accused house?
Defence: So you can confirm that you know very little of what was happening?
Witness: I was briefed that officers were there.
Magistrate: Were you briefed on what happens during the operations?
Defence: You can also confirm that the accused residence is a private place?
Witness: Yes, it is
Defence: Now your allegation that fingers were pointed at you to ‘remove these dogs’, how many were you?
Witness: We were many
Defence: So how can the finger point at so many police officers?
Witness: It was pointing where we were standing.
Defence: Who was asked to remove the dogs?
Witness: Mr Mokomongo, We were dogs on that day.
Defence: You can confirm that the accused persons didn’t mention your names?
Witness: He didn’t mention
Defence: That’ll be all
Reexamination by the State:
State: Did you see any dogs in the vicinity?
Defence: Objection, counsel should not lead the witness to produce new evidence. It must be restricted to the issues as they arose in cross-examination
State: I will rephrase, can you clarify what you meant when you said that there were no dogs in the yard?
Witness: I meant it was very surprising that he was saying remove the dogs because we didn’t see any dogs at the house.
At this point, the State indicates that it is ready to bring the next witness, but HH’s lawyer Mwiimbu brings it to the attention of the court that there are people in the court communicating with the other witnesses outside. Magistrate warns that people must not do that as it is contemptuous and can destroy the prosecutions case.
Next witness police officer, Henry Mulungisha 47, is called to the witness box.
Witness: On 11th April around 9:30 hours, I was assigned with Mr Musamba Chime and Detective inspector Hamweene to go to Mr Hakainde Hichilemas residence which is situated at plot number 10 747 off leopards hill road in Lusaka.
We received information from our police intelligence that some people were planning to go and cause problems to the officers who were assigned earlier to the same place to go and apprehend Mr Hakainde Hichilema the leader of the UPND. So we went there to assess. When we arrived around 9:30, we went straight to his residence. And we found some people there and some police officers within. Shortly, I saw Mr Jack Mwiimbu who happens to be a lawyer, Nelly mutti, Ms Mushipe who arrived at the premises. We greeted each other. Then, Mr jack Mwiimbu went inside the house of Mr Hakainde. Shortly, around 11:00 hours Mr Hakainde Hichilema came out of his house together with some relatives and he came to where we were standing. Then he uttered some words. The words he uttered where you idiots, mother fuckers, ‘hass hole’,
(People in court laugh, as witness tries to correct his pronunciation)
Witness: It was directed at us and he was fuming. Them Mr Musamba Chime cautioned him to stop using such words. He continued then I heard Mr jack Mwiimbu and Ms Nelly Mutti telling him to calm down. myself I did nothing, I just retrained myself but I was injured because I am not a dog. We ordered him to get on a car then Mr Hichilema refused that ‘no, I don’t want to get on your car, you want to poison me… then he chose a car which he wanted to get on. He chose an open white land cruiser together with some of his relatives. So that’s how we got him and went to woodlands police. At woodlands police, he was transferred to Lilayi where he was detained for treason. The insults were reported at Kabwata Police Station. After the report, we waited for court proceedings.
State: Your Honour. That’s all from this witness
Magistrate: I suspected that.
Defence lawyer Keith Mweemba: Mr musamba Chime was in this court and he never said that the accused was cautioned by him do you still stand by that?
Witness: Yes I do
Defence: What did he tell him?
Witness: He told him, stop insults
Defence: So Mr Musamba Chime despite the lawyers being present he opted to speak directly to the accused?
Witness: He told the lawyers that.
Defence: So you are changing now?
Witness: He talked to both
Defence: You spoke in passive voice. Why did you speak in passive voice?
Witness: Your Honour I don’t know the meaning of passive
Defence: Who reported the insults?
Witness: One of us but not me.
(Court attendees laugh)
Defence: Hearsay is not permitted in this court. You must state the person who reported.
Witness: The arresting officer Your Honour
Witness: Mr Mbita
Defence: So the complainant in this matter is the arresting officer?
Witness: Yes Your Honour.
Witness: The complainant in this matter is the state.
Defence: That is very interesting. So it’s a fact that the complainant is the one who arrested the accused.
Witness: (No answer)
Defence: Anyway, it’s on record we can move on. I will wait for the arresting officer. Now you are saying that you received intelligence information that some people wanted to attack officers. I put it to you that no officer was attacked
Witness: Yes, we assessed and no officer was attacked. When we reached there it was quiet.
Defence: So as far as you are concerned, the credibility of that intelligence info is questionable because nothing like that has taken place since then?
Witness: Yes, except insults
(Laughter in courtroom)
Defence: Did the arresting officer get any report from you?
Witness: No, I wrote my own report.
Defence: That report you are talking about is not evidence in this court because you haven’t produced it right?
Witness: It is not with me, it is before this court
Defence: Have you produced it?
Witness: No, I haven’t, I haven’t seen it.
Magistrate: Have you produced it? Where is it?
Witness: It is in the docket
Defence: To who is this report addressed?
Witness: It is addressed to an officer in charge
Witness: Officer in charge
Witness: Any police station.
Defence: So as far as you are concerned any officer in charge is the custodian of this document?
Witness: It is in the docket.
Defence: So who’s the custodian?
Witness: It is the prosecutor.
Defence: The accused has denied ever insulting you. So apart from your oral claim, what other evidence do you have?
Witness: My God and my fellow officers
Defence: So are you saying you will call God as a witness?
Defence: Now you had a duty to produce that report as your evidence but you didn’t.
Witness: We haven’t reached that point of it being produced.
Defence: How long have you been in he police service?
Witness: 22 years
Defence: I don’t mean to demean you, but how many times have you testified in court?
Witness: So many times.
Defence: Again not to demean you but what are your education qualifications?
Magistrate: I will protect the witness.
Defence: Do you have recorded audio or video?
Defence: Mr Chime said something else. Who is telling the truth
W: I am
Defence: So these are the only insults you heard and anyone else who says other things will be telling a lie?
Witness: According to me, yes
Defence: Did you hear anyone say I will beat these dogs?
Defence: I didn’t hear that
Defence: How about remove these dogs
Defence: I didn’t hear that.
Defence: But you were together with he first witness?
Witness: Not together, he was moving towards the accused, I remained behind a bit.
Defence: But it was within your earshot?
Witness: Those four words I heard yes.
Defence: How many officers were insulted?
Witness: The four of us including those police officers who were in uniform whom I don’t know the names.
Defence: So who was in charge? You?
Witness: No, Mr Chime was in charge.
Defence: On whose superior orders was Mr Chime acting?
Witness: I don’t know Your Honor
Defence: You didn’t book in at any police station prior to this did you?
Witness: No, we went straight to HH’s house
Defence: But you know the requirement of booking?
Witness: I am from Lusaka division, I just joined them when I was summoned so I don’t know, maybe one of them booked.
Defence: You are from homicide right? Was there any intention to kill the accused?
Witness: There was no intention to kill him
Defence: Mr Chime said he wasn’t in charge and you are saying he was in charge so who is telling the truth?
Witness: On the entire operation, I don’t know who was in charge but Mr Chime was in charge of the four of us.
Defence: How lawful was this operation to your knowledge?
Witness: It was very lawful?
Defence: Where is the search warrant?
Witness: I didn’t have a search warrant. It was during the day.
Defence: Your Honor, I never intended to demean the witness, but this is why I had asked about his educational background. I wanted it to be a foundational background. Now the witness has gone ballistic, he is saying it was during the day.
Magistrate: So according to him, a search warrant is only needed during the day.
(Laughter in court)
Defence: We will proceed, it’s not meant to embarrass him, he is a good man, a very good witness.
Defence: Any seizure notice?
Defence: Any breach of peace?
Witness: There was a breach of the peace. I was injured
Defence: What did you do?
Witness: I restrained myself
Defence: Since you are saying there was breach of peace, who did you arrest for breach of peace?
Witness: I didn’t arrest anyone for that but I arrested someone for using insulting language.
K: So you are now an arresting officer?
(Laughter in court)
Witness: I reported
Defence: If an offense has occurred in your presence, it is mandatory to arrest not so?
Defence: So none of you committed another offense as a result of these insults not so?
Defence: You agree with me that HH’s house is a private dwelling house not so?
Witness: Yes, It is a private place
Defence: So there was no breach of public peace?
Magistrate: Does anyone have a copy of the criminal procedure code?
Magistrate: Please give him to read section (82) I think
He read it… so his residence, did you go anywhere to a public place where he repeated those insults?
Defence: So you did not commit an offense as a result of the insults?
Defence: The witness has answered very well, I am satisfied, I have no further questions.
Another defence lawyer Jack Mwiimbu: we have decided not to cross-examine him further because we are very satisfied with the answers.
State: (No reexamination)
The state is then asked to bring a third witness.
State: We don’t have inspector Hamwene who we had scheduled to be our third witness…. Oh, wait, we have been told that he is outside.
Magistrate: Please make sure you have witnesses ready so that we can expedite such cases. Some people are failing to come to court and there is congestion at Kamwala correctional facilities. So bring your witnesses or failure to that, I will have no choice but to declare your case closed.
(Magistrate orders a health break)
State struggles to produce further witnesses
State: We are unable to proceed with the next witness who is Mr Hamweene. We have noted the courts sentiments with regards to adjournments, but we would like to note that this case was given two dates, today and tomorrow. So we would like to seek an adjournment so that we can call our remaining witnesses.
Defence through Jack Mwiimbu: we reject the application by the state. All the witnesses have been outside all afternoon sitting. We don’t appreciate the difficulties the state is facing to call their witnesses this afternoon. We believe that we can conclude this afternoon and if we don’t, the issues of collusion will arise because we are aware that the witnesses are confiding in each other.
Another defence lawyer: May I just add that we have a situation tomorrow because [another matter] is coming up before magistrate Simusamba for a ruling
Magistrate: Counsel, your witnesses were outside. Why can’t they come?
State: We are unable to proceed with Mr Hamweene because we would like Mr Mbita to come first.
Magistrate: Is Mr Mbita there?
State: Yes he is.
Magistrate: Tell him to come in.
State: May the record indicate that we asked for an adjournment that we are not able to proceed and the court made a ruling.
Magistrate: Yes, the record will show. I wish to expedite this matter. I therefore order that the available witness come in and testify.
State: I would like to state that justice is a two way thing, on the one part, you have the complainant represented by the prosecution, on the other part, there is the accused person represented by the defense counsel and in order to meet the ends of justice, I submit that it is the courts responsibility to balance both sides in order to reach the ends of justice. Given the ruling, we apply that the matter be stood down for 30 minutes for us to liaise with the witness, as we did not intend to call Mr Mbita before Mr Hamweene.
Defence: Much as we agree that there should be balance, the state must appreciate that this is their case and they have had all the time in the world to prosecute this matter. There is no plausible ground as to why the state cannot comply with the Constitution. It is mandatory. It is always a principle of law that while balance must be stricken, but the benefit lies against the accused persons who may be in custody against the mighty state. We all know that there is no written law as regards the order of witnesses. It is just a matte of practice and preference that arresting officers choose to testify last.
The state can put their house in order in the time they have requested. We have no objection but this matter must be concluded today.
Magistrate: I grant them 15 minutes. I will return after 15 minutes.
Third state officer Mbita Mpazi, 42, is called to the witness box
Witness 3: On 9th April, I was assigned to investigate three cases. Namely: treason, disobedience to lawful orders and disobeying an officer on duty in which the accused was Mr Hakainde Hichilema.
Then on 11th April around 9 hours, I accompanied other officers to the residence of Mr Hakainde Hichilema at plot number 10747 off leopards hill in Lusaka. This was after we had received an intelligence information that a group of people were organizing themselves to go and disrupt the operation which was at the said premises which started on the 10th April in the evenings.
Upon reaching the said premises outside the gate, there were relatives for Mr Hakainde Hichilema. One of them said he was the uncle. He further said ‘Mr Hichilema wants to avail himself but in the presence of his lawyers’. Then we waited for a while, I was with Mr Musamba Chime, deputy chief inspector Mulungisha and deputy inspector Hamweene.
Then the lawyers came and I was able to identify three of them which included Mr Jack Mwiimbu, madam Nelly Mutti and madam Martha Mushipe and another one who I just remember his face.
We proceeded inside the premises. We were led by the lawyers. When we reached near the house, we were told by the lawyers to wait a bit. A few minutes later, I saw Mr Hakainde Hichilema and other family members. When he came out and saw the presence of the officers, by this time we were two groups, plain clothed and uniformed police officers.
Then he charged at us police officers and he looked very upset. Then he asked who was the in charge of the police officers who were at his premises. Before we could answer him, he started insulting us whilst he was looking at those officers who were in uniform, he said “you dogs, get out from here, mother fucker, idiots, asshole”
Then my fellow officers, Mr Musamba Chime was angered and he had to approach one of the lawyers I came to know as Mr Muleza to tell his client to calm down but he continued insulting us. Myself I was provoked because it hurt my feelings and I had to approach the other counsel Madam Mushipe but unfortunately, he tried to beat me up. He was in a boxing position like this
(Illustrates clenched fists)
(Laughter in court)
Defence then asks the witness if he was referring to female lawyer Mushipe as “he” and the witness changed to “she”.
Witness 3: We were all in a provocative situation it’s only that we restrained ourselves from taking any action because we could have also reacted against HH and madam Martha Mushipe because we should have faced reactions from those people who were outside who we had received information that they had come to rescue Mr Hakainde Hichilema and of course we could have experienced breach of peace.
Witness 3: Thereafter, the situation was calm and I managed to apprehend Mr Hakainde Hichilema and put him in a police vehicle. He was accompanied by his bodyguards, and his lawyers followed. We went straight to Woodlands Police and thereafter we went to Lilayi police college and detained him at Lilayi police post. I made a formal complaint at Kabwata police station in form of a report and I asked other officers to submit reports concerning the same.
Then we waited for a while for other lawyers to arrive so that we could charge Mr Hakainde for three counts.
State: Who was the dealing officer pertaining to the matter before court?
Witness: I was the arresting officer. I wanted to charge him on the very day but one of the lawyers said he wasn’t ready and wanted to wait for his friends. So the Following day on the 12th of April, I made up my mind to charge me Hakainde Hichilema.
State: What did you do? Did you interview him before you made up your mind?
Defense: Thats a leading question
State: What did you do?
Witness 3: I made up my mind to arrest him and charge him for the use of insulting language, which he uttered on the 11th of April.
Under warn and caution he said he understood it and denied the charge and he did not issue any statement. He continued being in custody.
Witness identified the accused.
Defence lawyer Keith Mweemba: Confirm to the court that you are also a complainant to being insulted.
Witness 3: I’m the arresting officer
Defence: Answer the question
Witness 3: I also complained so I’m also a complainant.
Defence: And obviously this complaint from you is not a private complaint but you used your powers to become the complainant and the arresting officer at the same time. Is that the position?
Witness 3: I made an official complaint
Defence: To which magistrate? Please relax, you are assuming answers. Do you need a bottle of water?
Witness 3: We never made a complaint to the magistrate
Defence: So we are in this court by way of arrest without warrant. Is that the position?
Witness 3: I seek protection from this court [not to] let questions come which are not relevant to this matter.
Magistrate: Let me guide, it is not up to you to decide what is necessary. If you are asked an unfair question, you will see the prosecutor rising to protect you and even I can come in at any point. But there are laws to everything that happens in here.
Defence: So we are in this court by way of arrest without a warrant?
Witness 3: No
Magistrate: Do you have a copy of this warrant?
Witness 3: Your Honor I did not say I have a warrant.
Magistrate: So was there a warrant
Witness 3: No, there was no warrant of arrest.
Defence Lawyer Gilbert Phiri: The witness on the stand has clearly committed perjury in this court. It will be difficult for us to distinguish which are lies and which facts are true. May the court guide?
Magistrate: It is my view that the witness is showing inconsistency in his testimony but the offense of perjury cannot be sustained. I oder that cross-examination continues but I’d like to state that the witness is not being helpful to the prosecution.
Defence Lawyer Mweemba: So it is a fact that you took it upon yourself to be an arresting officer and at the same time a complainant in this matter is that correct?
Defence: You investigated and effected an arrest on all the matters? Correct?
Witness 3: Correct
Defence: When did you prepare your investigations diary? It is always in the docket as a matter of practice.
Witness 3: On the same date that it happened.
Defence: I’m not talking about occurrences. Is that the same?
Witness 3: An investigation diary and an occurrence book are different.
Defence: You started making entries in the diary on the 11th of April?
Witness: Your Honour, I am a police officer…
Defence: Answer the question
Magistrate: You are a senior officer? Here we have bigger cases, there are serious cases. This is the lowest we deal with because it is a misdemeanor. And we have seen witnesses who help the prosecution very well. So take it easy, relax and you will be helpful to the prosecution.
Witness 3: But there are some questions which need an explanation
Magistrate: But that is not what the law says, I don’t know where you got that
Defence: So you made entries in the investigation diary on the 11th of April?
Witness 3: No
Defence: Oh, so you are changing now?
Witness: I made entries on the 9th when I was assigned but for insulting language it was on the 11th.
Defence: Do you remember the first entry?
Witness 3: No
Defence: You don’t remember the contents?
Witness 3: No
Defence: When did you compile the docket?
Witness: I finished compiling the document before we took it to the prosecution.
K: I want you to look at your entry between 1100 hours and 12:42 hours.
What entry did you make?
Witness: I’m unable to tell
Defence: What entry did you make?
Witness: I’m unable to answer that question
Defence: Okay since you are unable to, may the witness refresh his memory by looking at the investigations diary?
State: The investigation diary is in the main docket for the treason. When the matter came here it was on one charge sheet so it’s in that diary. It’s not before this court. We ask for an adjournment in order to prepare it.
Defence: No, we will help you.
Magistrate: I will give them a benefit of doubt that the investigation diary is in the other docket.
Defence: Okay. We will leave it, but I know that this witness is not being sincere.
Defence: As far as you are concerned, there is only one investigation diary concerning all the matters?
Witness 3: No your honor, there are more than five… maybe there counsel can clarify because it has pages, it has more that five pages.
Defence: What columns are there? You are an officer of many years
Witness 3: I’m unable to remember.
Defence: Okay. What entries do you make in the investigation diary,
Witness: Provision for date and time, serial number, a column for entries and at the end there’s a provision for a signature.
Defence: You made five entries’
Witness 3: There are many entries.
Defence: Do you know the actual number or you don’t know?
Witness 3: I know the actual number, it’s more than five.
Defence: Did you include in the diary the teargasing and the brutality at the accused house?
Witness 3: No I didn’t. Because there was no teargasing
Defence: Is it also your testimony that there was no damage at the house?
WIntess 3: There was no damage.
Defence: Has there been any dispute as to the damage of the house?
Witness 3: Your Honor I don’t read these social media…
Defence: Isn’t Esther Mwaata Katongo your spokesperson? And bear in mind we have video evidence.
Magistrate: He has answered that according to his knowledge there was no damage to property.
Defence: But there was a battalion of officers?
Witness 3: No
Defence: Were other officers wearing masks?
Witness 3: What kind of mask?
Defence: Any masks
Witness 3: What you saw could have been uniform. I was not there to know that they were wearing masks
Defence: Did you include in the diary that there were dogs?
Witness 3: No
Defence: You chose to ignore it? Even outside there are dogs
Witness 3: there were dogs but here I have seen two dogs outside
Defence: When did you submit the report?
Witness 3: Immediately after the arrest.
Defence: To whom is it addressed?
Witness: My officer in charge. Mr Arthur Shonga, actually your Honour he is your friend.
(Laughter in court)
Defence: Do you remember what you recorded in the last paragraphs?
Witness 3: I warned and cautioned Mr Hakainde
Defence: Are you sure? Let us help the witness with this document
Magistrate asks state: Do you have it?
(State produces a photocopy and Mweemba confers with both the state and the defense.)
Defence: We ask that we make copies.
Magistrate says that can be done after court proceedings
Defence: Takes the document to the witness and ask him to kindly show us where you made an entry on the offense before this court.
Witness 3: Examines the document he authored intently and stays mute).
Defence: I put it to you that there is nothing in that document regarding this case?
Witness: It’s there Your Honour, item number 7.
Defence: Okay, I saw your hesitation
Defence: You did not report this matter to police did you?
Witness 3: Yes the report is there.
Defence: Did you report?
Witness 3: Yes
Defence: To who?
Witness 3: I can’t remember, the officers who were there.
Defence: Did you at any point have a witness statement reported from you?
Witness 3: No, I submitted a report.
Defence: But that report you are talking about has not been produced to this court as evidence do you agree with me?
Witness 3: It has been produced.
Magistrate: Before who?
Witness 3: Not yet produced Your Honour.
Defence: But you are the arresting officer not so?
Witness 3: Yes
Defence: But as arresting officer, you are the only one who can produce this as evidence not so?
Witness 3: Yes
Defence: So there is nothing you have produced in this court to support your allegation not so?
Witness 3: No. There was no video taken how can I produce it?
Defence: That’s why I’m saying you’re the only one who can produce this document?
Witness 3: If the court can get that document
Magistrate: Okay you are now shocking me. You are a senior officer. You should know that the court cannot look at any documents which have not been produced.
Witness 3: Since the case hasn’t closed, we will produce
Defence: Is there any other document to prove your allegations?
Witness 3: No, there is no other document.
Defence: No seizure notice?
Witness 3: No
Defence: You did not hear any words from the accused like “I will beat you dogs” did you hear anything like that?
Witness 3: No.
Defence: And you can confirm you did not have a search warrant right?
Witness 3: For which date?
Defence: For any date
Witness 3: No, I didn’t have any search warrant
Defence: You are aware that he has been summoned to police several times and he has complied?
Witness 3: I am not aware
Defence: Were these words uttered? “Remove these dogs out of here”
Witness 3: Those words were uttered when Mr Hichilema asked who was in charge.
Defence: Did he mention your name? Because there were dogs there
Witness 3: He didn’t mention my name. He doesn’t know me. There were no dogs, just lawyers and police
Defence: Did you breach the public peace?
Witness 3: No.
Defence: Did you commit any offense as a result of those insults?
Witness 3: I restrained myself
Defence: Who asked you a question about restraining?
Witness 3: No I didn’t commit any crime.
Defence: You can agree with me that his property is private not so?
Witness 3: Yes
Defence: You didn’t go anywhere away from those premises to breach the public peace did you?
Witness 3: No
Defence: You are saying you apprehended Mr HH, put him in a vehicle and took him to Woodlands right?
Witness 3: Putting him how? Lifting him or what? We requested him
Defence: Who requested?
Witness 3: Me, myself.
Defence: You chose that vehicle?
Witness 3: We chose it yes, It was the one available
Defence: To prove malice, how many counts are standing from the ones you arrested him for? You have abandoned others not so?
Witness 3: I am not aware
State: The amendments to the charges have got nothing to do with the police.
Magistrate: I hold a different view, the police emanate from the police therefore , the charges have everything to do with the police
State: If I may correct the courts view, the NPA even altars a charge.
(Magistrate overrules, saying the arresting officer is in court to defend the charges)
(Witness given the report again and asked “do you see any offense of breach of statutory duty in there?”)
Witness 3: It’s not there
Witness 3 is shown entry number five in the investigations report and told to read.
Witness 3: Your Honour I charged…
Defence: Read, do you understand English?
Witness 3: Hesitates
Defence: Read paragraph five why are you scared?
Magistrate: Read. Read it loudly so that even the counsel can hear
Witness: Your Honor I need to consult
Magistrate: I don’t want to start asking for your educational qualifications
Witness 3: (Reading) “It was revealed that Mr HH and others refused to clear the path of the presidential motorcade…”
Defence: Who is this officer who was clearing the way?
Witness 3: Mr Ndalama
Magistrate: We will break at this stage. We have been sitting since 09:00 hours. Let’s have a date for the next hearing. Owing to time, this matter stands adjourned to 09:00 hours tomorrow.