SEVENTEEN UPND cadres who were arrested together with Chongwe Member of Parliament Sylvia Masebo for unlawful procession have been discharged by the Lusaka Magistrates Court.
Alfred Habeenzu and 16 others were discharged yesterday after the State entered a nolle prosequi against the accused persons in a matter they were charged with unlawful procession after Magistrate Kenneth Mulife made a ruling on whether or not he should refer the matter to the High Court for constitutional reference because the defence objected to a nolle.
In his ruling on the defence’s objection to the nolle, Mr Mulife said the subordinate court had no powers to overrule the Director of Public Prosecutions (DPP) concerning any instructions and to seek reasons why a nolle was issued.
He said it was only the High Court which had powers to change the DPP’s decisions on such matters.
Mr Mulife said if the defence had asked the court to quash and discharge the charge on the indictment before the State had entered a nolle, the court could have made other decisions.
He said he could not question the DPP why a nolle was entered as he had powers which were vested in him to enter a nolle in any case and at which ever stage of the court’s proceedings.
Mr Mulife said in accordance with Article 56 of the Constitution, the DPP has powers to discontinue a case before judgment is delivered, adding that once a nolle is entered the accused shall be discharged.
Earlier defence lawyers, Keith Mweemba and Martha Mushipe, objected to the State’s application for a nolle, stating that the State could not enter a nolle in a charge that did not exist.
The lawyers told the court that they had submitted that the charge should be quashed and that a nolle could not be entered because the charge lacked merit.
They asked the court to refer the case to the High Court for constitutional determination whether the accuseds’ freedom of movements were infringed or not.
Mr Mweemba said the charge was unconstitutional as it was contravening Article 22 of the Constitution which guarantees the protection of freedom of movement.