Incarcerated UPND President Hakainde Hichilema is certain to remain in police custody until the Easter long weekend is over after a Judge reserved ruling in a Habeas corpus application by his lawyers.
And Mr Hichilema’s lawyer has submitted that their client now being arrested and detained for over fifteen times since 2006 should be released because he has at all times been fully compliant whenever he has been summoned to report himself to law enforcement agencies.
Mr Hichilema and five other supporters of the UPND have been slapped with treason and other four criminal charges.
Treason is a non-bailable offence in Zambia and carries a death sentence upon conviction.
The last executions in Zambia were carried out in 1997 when the then President Frederick Chiluba authorised the execution of eight convicts for various offences.
Since then, presidential moratorium on executions has been maintained by successive Presidents.
There are only three offences which carry the death sentence in Zambia namely murder (Section 201 of the Penal Code); aggravated robbery (Section 294 of the Penal Code); and treason (Section 43 of the Penal Code).
The offender may be spared the death penalty (administered by hanging by the neck) and sentenced to life imprisonment instead if they are pregnant or under eighteen-years of age when the crime was committed (Section 25(4) of the Penal Code).
A habeas corpus is an application requiring a person under arrest to be brought before a judge especially to secure the person’s release unless lawful grounds are shown for their detention.
On Tuesday evening, UPND lawyers pushed in a habeas corpus application on Tuesday to have their client presented before court or force the state to charge him with the home of securing his release.
UPND lawyers argued their case before judge Getrude Chawatama who however reserved ruling for Tuesday next week.
This means that Mr Hichilema who was detained on Tuesday at Lilayi Police College will remain under police custody until the matter is heard on Tuesday next week.
Good Friday and Easter Monday are public holidays in Zambia.
By the time his case his heard, Mr Hichilema would have spent eight days in detention.
Judge Chawatama reserved the ruling to Tuesday to allow her to study the oral and written submissions by Mr Hichilema’s lawyer and those of the Attorney General who has objected to the habeas corpus application.
Attorney General Likando Kalaluka opposed the application by UPND lawyers compelling the state to present Mr. Hichilema to court following his detention on Monday April 11 2017.
In an affidavit in apposition of exparte notice of motion for writ of habeas corpus filed in the Lusaka High Court on Tuesday, Mpazi Mbita from the Attorney General’s Chambers said the application by the Mr Hichilema’s lawyers had been overtaken by events as he had already been charged and will soon appear before court.
He submitted that when the police officers wanted to charge Mr. Hichilema on April 11 ,2017, his lawyer Jack Mwiimbu requested that the opposition leader should only be charged in the presence of all his lawyers most of whom were not present at the material day.
“The applicant has been charged with offences of treason, disobedience to lawful orders, disobeying of statutory duty, and use of insulting language. Now produced and shown to me marked “MM1” is a copy of the note book signed by the applicant showing the charges, “he submitted.
Earlier, Mr Hichilema’s lawyers asked the Lusaka High Court through an application for a habeas corpus to compel the state to present him to court following his detention yesterday.
His lawyer Keith Mweemba said the arresting and continued detention was unlawful and unconstitutional.
In an ex-parte notice of motion for writ of habeas corpus filed in the High Court, Mr Mweemba said his client had been in detention without being charged or notified of crime committed.
Mr Mweemba said on April 10 from 21 Hours to 12 am, midnight, his client’s residence was stormed by platoons of uniformed and non-uniformed police and para-military officers who raided in his home and damaged his property, tear gassed his home and restricted the liberty of the applicants and his family.
He said that Mr Hichilema’s wife who is asthmatic collapsed on three occasions as a result of the unlawful use of tear gas in their house.
The lawyer also stated that the police officers who unlawfully invaded the applicant’s home did not only damage his home and property but also did stole colossal sums of money in Zambian Kwacha, South African rand and US dollars as well as various items such as shoes, blankets, speakers, floor carpets and foodstuffs.
” In the morning of 11th April, 2017, the applicant was taken to Woodlands Police station and without explanation was whisked to Lilayi police staff college where under police guard he was being held incommunicado, ” stated the lawyer.
Mr Hichilema’s lawyer also said his client who is now being arrested and detained for over fifteen times since 2006 has at all times been fully compliant whenever he has been summoned to report himself to law enforcement agencies and as such the respondents action to invade the applicants right to privacy is not only unreasonable and disproportionate also illegal and unconstitutional in the extreme.
“I therefore respectfully apply to this honourable court to issue forthwith apply write directing the officer in charge at Lilayi police training college and others who may have and /or control of the applicant’s body to bring before this honourable court then and there consider of and concerning the applicant in this behalf,” he said.
Mr Mweemba said there is need for the court to adopt special responsibility regarding the illegal denial to the applicant’s liberty by the respondent and as such the courts most anxious scrutiny of the illegal detention must be exercised.
He said the circumstances of the case require that the writ of habeas corpus does issue immediately as the applicant is being illegally held without just, reasonable and probable cause.