The Lusaka Magistrate Court on Tuesday heard how five other people accused alongside UPND leader Hakainde Hichilema of treason were tortured whilst in detention at Lilayi Police College.
And the Prosecutions team has made slight changes to the treason charge slapped on Mr Hichilema and five others by alleging that Mr Hichilema and five others to overthrow the government of President Edgar Chagwa Lungu on unknown dates but between 12th October 2016 and 12th April 2017.
Meanwhile, Mr Hichilema and his co-accused have been moved from Lilayi Police Training College to Lusaka Correctional Facility after Lusaka Magistrate Greenwell Malumani ruled that the accused are no longer property of the Zambia Police since they have appeared in court.
And Mr Hichilema who appeared for mention and explanation of the charge looked relaxed and composed and smiled at his supporters told the court that he fully understood the charges slapped on him.
He also the Court that he was attacked like a common prisoner for 15 Hours with his family.
Mr. Hichilema is jointly accused with five others, who include Hamusonde Hamuleka, Muleya Hachinda, Laston Mulilanduba, Pretorius Haloba and Wallace Chakawa for Treason, disobeying lawful instructions and insulting language.
The defence team comprising Vincent Malambo, S.C, Nelly Mutti, Hon. Jack Mwiimbu, Laston Mwana, Martha Mushipe, Chad Muleza, a Dr Mbushi and Keith Mweemba pleaded with the court that Mr Hichilema be allowed access to visitations from family, lawyers and a family doctor.
Hon. Jack Mwiimbu informed the court that those accused besides Mr Hichilema were severely tortured even on their private parts.
He said the accused were forced to open their mouths and pepper sprayed causing unimaginable pain.
And Mr. Malambo told the court that Mr. Hichilema was denied access to meet his Lawyers, his friends, his supporters and Doctors further demanding that the State disclose a purported stranger who visited Hichilema in the night on pretext that he was a pastor.
“Your Honour we ask for a forensic investigation as to who this Pastor was and how he was allowed to have access to the accused when the visitors that matter to him like Lawyers, Doctors, friends and family were being blocked?” Mr. Malambo asked.
Mr Malambo also pleaded that the accused should be allowed reading materials and that as a matter of law and humanity, punishment should only be effected after conviction.
He said the lawyers were not allowed in the last two days of Mr Hichilema’s detention at Lilayi and that before that, each lawyer was only given 20 minutes which he said was not enough time.
He said after speaking to the Inspector General of Police, health personnel were sent to him but not a Doctor urging that the Court must intervene to allow his doctor to assess his health.
Mr Malambo demanded that the family doctor examines him especially considering the amount of teargas Mr Hichilema suffered.
He said not even under a one party state which he said were difficult years were for political prisoners treated like this one in decent times.
“He was attacked at his place of residence at night. He was not a danger to police. Teargas was discharged in the room he was with family,” he told the court.
“HH was actually apprehended on 11th April without warrant. The manner of his arrest should cause concern to this court,” Mr. Malambo said.
And another defence lawyer Keith Mweemba also submitted that its unconstitutional for the accused to be incarcerated whilst waiting for charge sheet from the Director of Public Prosecutions Chambers.
Mr Mweemba said the court has jurisdiction to separate the charges so that the accused is not denied speedy justice.
The prosecution submitted that they would like for the matters to be referred to the High Court and a request was also made for the prosecution to give guidance on how to proceed in light of the Treason charge not triable by the Subordinate court.
But Magistrate Malumani quizzed the prosecutions as to what their intention was by combining a felon and a misdemeanour for it to be treason.
In Count One which is Treason, it is alleged that Mr Hichilema and others on unknown dates but between 12th October and 12th April prepared to overthrow the government of President Edgar Chagwa Lungu.
As the Magistrate was reading out the charge on treason, the court room broke into loud mummers.
In Count Two which is on Disobedience of lawful orders, it is alleged that on 8th April 2017 in Western Province, Mr Hichilema disobeyed an order of command that was duly made while in Count Three which is on the Use of insulting language, it is alleged that Mr. Hichilema on 11th April used offensive language towards police officers.
Among the people that were present in court are his wife, Mutinta Hichilema, Movement for Multiparty Democracy (MMD) leader Dr Nevers Mumba, Alliance for Democracy and Development leader Charles Milupi, People’s party President Mike Mulongoti, UPND Members of Parliament and other party officials.
In passing ruling, Magistrate Malumani said the accused was entitled to medical facilities and services as this was a human right.
“I therefore, grant the accused rights to medical services and in case the accused has no personal doctors the state will provide,” he said.
He said the accused person has a right to seek legal representation and access to his lawyers any time he deems fit further stating granting visitation to his wife, children and five other family members whose names must be submitted to the authority.
Magistrate Malumani directed that Hichilema to be transferred to Chimbokaila from Lilayi police camp.
“Since the accused person appeared in court, is no longer a property of the Police as such can never be held from any other cell apart from the Lusaka correctional facility. He should be given access to all necessary things like mattress, food, water, and blanket and any other the accused may need,” he said.
The Magistrate however said state agencies were justified to limit the numbers of people to visit the accused for security reasons.
Mr. Hichilema’s lawyers also raised preliminary matters seeking the court to separate the charges slapped on him.
They told the court that the prosecution should be made to separate the charges as according to them, felony and misdemeanours case had been mixed.
The lawyers contended that Mr. Hichilema would be afforded a speedy trial if the charges were separated.
Magistrate Malumani also directed that Mr Hichilema must be allowed access and visitation by his spouse, children and five other family members.
He also directed that Mr Hichilema must be allowed to interact with his lawyers for at least an hour and not 20 minutes.
The Magistrate also directed that the State should allow Mr Hichilema access to personal medical service from a medical doctor of his choice.
Magistrate Malumani directed that all his rulings be adhered to.
He adjourned the matter to Wednesday, April 19 2017 and proceedings will be held in the morning in Court 12.
Meanwhile, the Lusaka High Court dismissed the application by UPND lawyers compelling the State to present party president Hakainde Hichilema to court following his detention last week.
In a ruling delivered on Tuesday, High Court Judge Gertrude Chawatama said she agreed with the submission of the Attorney General that it is the role of the trial court to establish the validity or otherwise of the charges and the trial court would enquire into the same.
She said the court was of the view that the proper authority at this stage to receive meaningful representations.
“Habeas corpus proceedings are not designed to forestall criminal proceedings. Habeas corpus cannot be used as remedy an internment that is allowed by law. This is not a fit and proper case for a writ to issue,” she said.