LUSAKA principal resident magistrate David Simusamba has adjourned to Friday ruling in Hakainde Hichilema’s treason case. Hichilema and five others had asked the court to refer the case to the High Court for constitutional determination. The matter was adjourned on Monday because magistrate Simusamba was unwell.
This is the fourth time ruling in the treason case is being adjourned.
Below is the short verbatim of today’s proceedings:
STATE: The accused persons are before
Defence Vincent Malambo: Your Honour, we have two issues to raise before the court. The first one relates to perennial difficulties facing both lawyers in accessing these premises. And the second issue relates to visitation rights that accused persons have. In particular to be visited by friends and relatives at their place of confinement. Dealing with the first issue Your Honour. This morning, accessing the court by some of my team has been difficult. The nasty example is a situation where two young lawyers who tried to come to attend to their responsibilities were detained by the police.
They were placed in a police motor vehicle for them to be driven to Kabwata Police Station for detention. Lawyers are a large part of this team. They should not have difficulties in accessing these premises. Perhaps with the exception of myself who was allowed to drive in and park my vehicle inside. Most of them are not allowed to park their vehicles inside. Most of them are requested to park their vehicles outside. It’s a difficult situation because the police will not protect those vehicles outside in an event of any fracas around these premises. It’s not that there is no room inside, it’s just that the police don’t want to do that. The court which any accused persons appears ought to be an open court, the concept of open Court is not only legal but symbolic. That justice must be spaced to the full layer of the public eye.
When attempts, whether by the guys of the security to prevent friends, relatives and other members of the interested parties to come and observe the conditions under which their friends, relatives and leaders are tried, justice is then not dispensed. Lawyers have a duty to perform in court and also the prosecution have a duty to perform in court. That duty must be facilitated. What risk does a young lawyer pose to receive the treatment they received this morning? What is achieved by stopping defence counsel? In case of today, even prosecution counsel were stopped. We would be grateful Your Honour that those in charge of our lives who give us access to the courts to explain why it is necessary to do what they are doing. We want unrestricted access to this court. They must do this and allow us to perform our responsibilities.This is not a new issue. We have raised it before with your brother magistrate Mr Malumani who gave directives to the police on access to the courtroom but this seems to be ignored. We would like you to address this issue again. On the issue of visitation rights, each one of these accused persons have relatives and friends, they have parents. One of the accused parents’ have been unable to see him in prison. They have not been able to see him in prison, the only time they have is to see him here in court.
In Zambia, a prisoner can’t be denied visitation rights until that prisoner has abused those rights. The prison regulation permits visitation…and on those days, any person who wishes to visit a relative has that access. Counsel has the right to visit the prisoner at any time during working hours. These accused persons have other issues, other matters which they are entitled to instruct counsel other than counsel representing them in this matter. Right to counsel is a right. The prison system now permits only those lawyers on record in this matter to visit the accused person.
Like I said, Mr Hichilema has other matters pending and other issues which he needs to consult counsel which goes for every other accused persons. We pray that the accused persons be allowed access to lawyers, not necessarily these on record, but even other lawyers because they may be wanting to instruct other lawyers to deal with other aspects in this matter. Can the accused be allowed access to friends and relatives during normal visitation periods? What is the basis of preventing people, including those with other matters from coming to court, why should they be prevented from coming to court to hear their matters? The accused persons are now detained by a warrant of this court. This court has jurisdiction to give direction on how the accused persons who are in your custody should be treated. That is my plea thank you very much.
Magistrate Simusamba: May I see the prosecutions, defence and those in charge of security in my chambers. I will incorporate this ruling in my ruling on Friday.