State fail to present Spax in court

Lusaka High Court

THE State on Friday failed to avail Chingola Jerabo aligned to the Patriotic Front Baba Kabaso Mulenga popularly known as ‘Spax’ before the High Court for hearing of his application for leave to issue a writ of Habeas Corpus AD Subjiciendum directing the police to either release him or take him to court so that he can be tried on allegations of murder and unauthorised use of uniforms. In this matter, Mulenga has sued the stated and cited the Attorney General seeking an order that he be released from police custody as he has not been charged with any offence.

When the matter came up for hearing of the Habeas Corpus application, Attorney General Likando Kalaluka sought an adjournment on grounds that the State was served with a writ on March 11, 2020 by Mulenga’s lawyers. “We immediately sought instructions from our client and we are yet to obtain the same. The court will note that yesterday [Wednesday] was a public holiday and this has caused the delay,” Kalaluka explained. “We are alive to the fact that this is an urgent application. We are therefore humbly requesting for an adjournment to enable us obtain instructions and defend the interest of the State accordingly.”

But Mulenga’s lawyer Iven Mulenga and J.Sinkala said service of the writ was effected on the officer-in-charge who had custody of Mulenga and does not need instructions because it was the duty of the officer to take the accused to court but the applicant was not before court. “It is our considered view that before we can consider the application for an adjournment, the court has to be satisfied that the body is before the court. We therefore ask the guidance of the court before we can comment on the application for an adjournment,” he said. Sinkala added that the nature of the application demands that the body be brought before court and the State has not even addressed the court with the issue of whether the body had been brought.

“The role of counsel was to advise the authority that had the body of the applicant to comply with the order.
It would be incompetent to make an application without the body. We therefore object.” Said Sinkala In his response, Kalaluka said he did not have instructions as he had written to the Ministry of Home Affairs, hence the application for the shortest possible time. “Our application is not incompetent as alleged by counsel, we humbly pray that the court considers the application,” said Kalaluka In his ruling, justice Wilfred Muma said there was no regard or instructions to bring Mulenga before court as the order to bring his body was inherent in the writ. “Nevertheless, in the interest of justice, I shall grant the application for an adjournment and order hence forth that the State complies with the order to bring the body before court. The matter is adjourned to March 16, 2020,” said justice Muma. In his affidavit in support of ex-parte summons for grant of leave to issue a writ of Habeas Corpus, Mulenga, who is a businessman and proprietor of Spax mining, said his continued detention without being charged was not only unjustifiable but also unlawful as it was unconstitutional because his fundamental and guaranteed rights to freedom and liberty were being blatantly violated and unfairly prejudiced. Mulenga contended that on February 26, he was apprehended by police officers in Chingola on the Copperbelt who identified themselves as crime one police officers of police headquarters Lusaka and he was brought to Lusaka the same day and detained at Chelston police station. The murder suspect said he was detained in cells and no one was allowed to see him neither was he allowed to talk to his lawyers until Saturday February 29, when he was taken to the Chief Investigations Officer’s office for a warn and caution statement for the alleged murder of Emmanuel Chibwe.

Mulenga said officers from crime one advised him that he was being investigated in relation to a case of murder and use of military combat without authority. He said after warn and caution statement was administered he (Mulenga) was not charged with any offence but he was transferred from Chelston police station to Chilenje police station and later to Ibex Hill police station where has been kept without being charged. “I have been informed that I cannot be released by the police until further notice as they are still carrying out investigations and that they have not yet formulated the charge and I believe that the state, its servants or agents is vindictive and abusing their powers by declining to release me or charging me and taking me before a competent court because from the time of my arrest and detention [on] February 26, 2020, I have not been charged or presented before a court of law to answer to any charge,” Mulenga lamented. He claimed that attempts to have the matter brought before court have proved futile as the police insist that he remains in their custody. He contended that his rights against unlawful detention had been breached and would continue to be infringed and it was only fair and just that a writ of Habeas Corpus AD Subjiciendum be issued to secure his protection under the law. ” In the interim, I strongly believe an order for my release will prevent the high likelihood of any delay by my custodians defeating the due course of justice which should not only be deemed to be done but also seen to be done,” said Mulenga said
[The Mast Online]