25 days and counting: Treason suspects still waiting for court as LAZ raises alarm

LUSAKA – Twenty-five days after Brian Mundubile and Makebi Zulu were formally charged with treason, the two opposition figures and other suspects in the case have still not appeared before a court on the treason allegations. Mundubile and Zulu were formally charged with treason on August 29 after being taken into custody two days earlier. […]

LUSAKA – Twenty-five days after Brian Mundubile and Makebi Zulu were formally charged with treason, the two opposition figures and other suspects in the case have still not appeared before a court on the treason allegations.

Mundubile and Zulu were formally charged with treason on August 29 after being taken into custody two days earlier. As of September 23, they have spent 27 days in detention and 25 days since the formal treason charge without a court appearance in the treason matter.

The prolonged detention has now become the subject of a constitutional and legal debate, with the Law Association of Zambia (LAZ) calling on law-enforcement and investigative authorities to urgently review cases involving people who remain in custody without being brought before court.

In a statement dated September 22, LAZ said the right to personal liberty remains a fundamental constitutional protection regardless of the seriousness of the allegations or the political status of the person detained.

The clock on the treason case

The timeline is significant.

Mundubile and his running mate Makebi Zulu surrendered to police on August 27 and were detained following questioning over alleged treason.

Two days later, on August 29, they were formally charged with treason, according to their lawyer and subsequent reporting.

They were subsequently transferred to Mukobeko Maximum Correctional Facility in Kabwe, where they remain detained.

The treason case has since widened to include 18 detainees, including businessman Harry Valden Findlay and other people connected to the matter. Eighteen of them have petitioned the High Court, arguing that their continued detention is unlawful and unconstitutional.

The question now is not simply when the investigation will be completed.

It is when the people already facing the allegations will be brought before a court.

What does the law say?

Article 13 of the Constitution provides that a person arrested or detained upon reasonable suspicion of having committed a criminal offence who is not released must be brought before a court “without undue delay.” It also provides that where a person is not tried within a reasonable time, they should be released unconditionally or subject to reasonable conditions.

The Criminal Procedure Code also provides that where a person is detained after arrest without a warrant, and is not released, that person should be brought before a competent court as soon as practicable. Section 33 specifically addresses situations where it is not practicable to bring an arrested person before court within 24 hours.

The issue therefore is not simply whether police are allowed to investigate before a trial.

They are.

The legal question is how long a person can remain in custody while that investigation continues without judicial proceedings beginning.

DPP says investigations are still underway

The State has given a reason for the delay.

DPP Gilbert Phiri said on September 14 that investigations into the treason allegations were still continuing and that law-enforcement agencies needed space to complete their work.

He said the suspects would be taken to court once investigations were concluded.

That position is now central to the debate.

The State’s position is that investigators need time to establish whether a prosecutable case exists.

The counter-question raised by LAZ and the detainees’ legal challenge is whether continued detention can itself be justified simply by saying investigations are ongoing.

LAZ: detention cannot become a substitute for investigation

LAZ says investigations may continue after a lawful arrest, but detention should not be used as a substitute for conducting those investigations.

The Association cites the Supreme Court’s decision in Munyonsi & Another v Ngalabeka, which held that police have the power to arrest for offences recognised by law but do not have the power to arrest people simply for the purpose of making inquiries.

LAZ says the seriousness of an allegation does not remove constitutional protections.

It has therefore called on authorities to bring people who remain in custody before a competent court without undue delay, or otherwise lawfully release them.

The High Court challenge

The issue has already reached the courts.

Mundubile, Zulu and 16 other detainees filed a constitutional petition in the High Court challenging their continued detention and arguing that their rights had been violated.

The petition puts the legality of the detention itself before the judiciary.

This means the question of whether the State has complied with constitutional requirements is now capable of being tested through judicial proceedings rather than remaining only a political debate.

A second charge has also been added

The detention has continued even as a separate criminal allegation has been added against Mundubile and Zulu.

On September 11, police formally charged the two with seditious practices under Section 57 of the Penal Code. They were returned to Mukobeko pending further procedures and their appearance before court.

The sedition charge therefore adds another layer to the legal situation, but it does not answer the central question surrounding the original treason case: when will that case actually come before a court?

The question now facing the State

The passage of time has changed the character of the issue.

What began as a police investigation into allegations of treason has become a broader legal question about detention, constitutional safeguards and judicial oversight.

The State says investigations are continuing.

LAZ says detention cannot be allowed to substitute for investigation.

The detainees are challenging their continued custody in the High Court.

And nearly a month after the treason charges were formally laid, the allegations have yet to be tested before a court.

Zambian Eye will continue to follow the High Court proceedings and the State’s next step in the treason matter.