Lusaka Magistrate David Simusamba has finally ruled that the constitution issues in the treason case involving opposition UPND president Hakainde Hichilema and five others go to the High Court.
Delivering ruling this (Friday) afternoon, Magistrate Simusamba explained that in the past no subordinate court had queried any directive from the Director of Public Prosecution (DDP).
Magistrate Simusamba however said he was ready hear other complaints from the accused such as torture.
He told a packed courtroom that the Magistrate court has powers to hear complaints but that the Magistrate court has no powers over constitutional issues which he has also referred to the HighCourt.
On the validity of the commutal certificate, Magistrate Simusamba he had already dealt with constitutional issues and that on the certificate, the overt act which had issues of who committed what offense.
Magistrate Simusamba stated that the overt act talks about Hakainde Hichilema and 5 others wanted to ursup power in Mongu. He said Hichilema and Halooba organized an advance party in order to be received as President in Mongu. He ruled that this was a committal certificate signed by one Marian Matandala as she had been delegated by the DDP.
He has ruled that even if names are differed in the overt act and indictment, it is no way a violation of the charge. He said in his view this can’t invalidate the committal certificate.
Magistrate Simusamba said the constitution states that DPP may delegate through writing and that any action taken by a lawful officer has authority.
He says his understanding is that the DDP has powers to delegate anyone to act on his behalf but that he can’t agree with State advocate Mwewa when he said that as long as anyone is employed by the judiciary.
Magistrate Simusamba had however said the defence are free to seek judicial review in the High Court on the validity of the commutal certificate. He has adjourned the matter to June 12, 2017 to allow the accused seek judicial review.
This means more days in prison for Hichilema and his co-accused as the case is not bailable.