Because of Lungu’s Behaviour, GBM Would Be Entitled To a Mistrial

By Dr. Munyonzwe Hamalengwa
July 24, 2016

The police recently raided  without a warrant GBM’s house and for good measure according to the reports,  planted weapons, stole a lot of cash and maybe other things, tear-gassed his family and committed other atrocities. If you have never had your house illegally invaded, you are not in a position to know the ultimate violation of privacy that this entails. From centuries ago, the English courts which Zambia follows, proclaimed that ” a man’s house is his castle” and his privacy shall not be unduly violated in it.

It was also reported that after this violation of the rule of law, the police summonsed GBM to the police station. As of Sunday, July 24, 2016, I have not read any reports as to what has happened to GBM since he had been summonsed. Is he going to be detained or charged?

On Saturday July 23, 2016, the Zambia Daily Mail on its front page with a picture of President Lungu addressing hundreds of people at Mumbachala reported that Lungu told the crowd the following, “the recovery of offence weapons by police at the house of UPND vice-president for administration Geoffrey Mwamba in Kasama demonstrates the reason leaders of the opposition party refused to sign the peace pact”.

Firstly Lungu is lying. The UPND explained the basis of their refusal, so a President is lying through his teeth to hundreds of people for political gain.

However, the lie is not the most serious since the PF has been lying from the election campaign of 2011: remember more money in your pockets, the Constitution in 90 days, the resolution of the Barotseland case in 90 days, the creation of thousands of jobs, the opening of the Mulungushi textile (which never opened and again to win an election is slated to be opened 10 days before elections- the vote buying spree is in full swing, too little too late  I reckon. In the same front page issue VP Wina is promising 5,000 squatters to get free land for settlement- why now?) and so on.

The most serious thing about Lungu’s pronouncement on the GBM issue is that a lawyer-president makes a judgment on an issue that may end up in court should GBM be charged with the very offence that Lungu now categorically judges that GBM is guilty of. There may be triable issues here. Court cases are rarely that straight forward. That is why the concept of fair trial before an impartial tribunal was created.

How can GBM and the UPND members already arrested, receive a fair trial when the president has already found them guilty. What if there is evidence through fingerprints and eyewitnesses that will state that the alleged weapons were planted? Which magistrate or judge would believe that defence when the almighty President has already pronounced the verdict? Which magistrate would give GBM or the arrested UPND members, bail since the president has already convicted them?

What if there is a defence that any alleged weapons were for self defense because the PF is a violent party and the UPND had prior knowledge of the impending PF attack, and the weapons were never going to be used if the PF never attacked? What happens to that defence since the president has already found them guilty? Self defence or preparing for self defence for credibly apprehended danger is a legal defence accepted throughout the common law world.

It is immaterial that GBM and the UPND members may not be charged. The president is enjoined from commenting on any potential legal issue because of the prejudice that it may create. It would be okay from people like “Dr.” Kambwili to speculate, but not from a lawyer-president even in the heat of an election campaign.

If GBM is charged with any offence arising from the illegal raid of his home and if any UPND members are also charged, there must be an immediate declaration of a mistrial, or nolle proseque  by reason of presidential interference in the administration of justice. The prosecutors and judges owe it to the oaths they swore to uphold the rule of law and to punish the transgressors and not to punish the victims of the miscarriage of justice in which GBM and the UPND members may find themselves. The Nuremberg cases and the South African Truth and Reconciliation Commission have now set precedents that judges are also accountable in post-conflict Justice. In both precedents, judges were dragged to the hearings to explain when they sided with injustices during the reigns of the prior regimes. Justice never sleeps.

Dr. Munyonzwe Hamalengwa practiced law in Canada for 25 years and is the Compiler of the book, The Case Against Tribalism in Zambia available at Bookworld.