Treason Trial Date Still Unset As Custody Petition Reaches Court

A judge ordered the State to produce a detainee before the Lusaka High Court by 18 August so that the lawfulness of his custody could be examined in connection with the Treason trial. He was brought in on 20 August, two days after the return date. No explanation for the delay…

A judge ordered the State to produce a detainee before the Lusaka High Court by 18 August so that the lawfulness of his custody could be examined in connection with the Treason trial. He was brought in on 20 August, two days after the return date.

No explanation for the delay appears on the court record regarding the Treason case. None has been filed by the State, and none has been offered publicly since.

That missed deadline now sits inside a constitutional challenge brought by 18 men held over the disputed general elections, who have asked the court to rule on whether their arrest, transfer and continued confinement were lawful in light of the Treason charges at all.

The petition was lodged on 11 September under Cause No. 2026/HP/1156. Among the petitioners are opposition leader Brian Mundubile, his running mate Makebi Zulu and George Kangwa Chisanga, all held at Mukobeko Maximum Correctional Facility. The respondents are the Attorney General, investigating officer Harrington Akushanga and Zambia Correctional Service Commissioner General Fredrick Chilukutu.

Two constitutional provisions carry the case. Article 13(2) guarantees an arrested person the right to be informed of the reasons for the arrest, while Article 13(3)(b) guarantees the right to be brought promptly before a competent court. The petitioners argue that their admission to Mukobeko Maximum Remand facility was arbitrary and effected without a lawful warrant.

The filing also alleges ill-treatment in custody. Those particulars are untested and the respondents have not answered them, and they are not set out here pending that response and the determination of the court.

Writs of habeas corpus were sought on 5 August for four of the petitioners, and the order of 12 August arose from those applications. Habeas corpus compels authorities to produce a detained person before a judge and justify holding him. It tests the custody itself rather than the merits of any charge, which is why the same procedure reaches the court in matters that have nothing else in common.

A second family is before the same court with that instrument this month, on facts that have nothing to do with politics.

Margret Museka Mazyopa has applied for a writ of habeas corpus on behalf of her husband, Zambia National Service officer Masulani Andrew Mazyopa. She states that he was taken into custody on 27 August after being interviewed by Drug Enforcement Commission officers at ZNS headquarters on Church Road in Lusaka.

He has since been held at Woodlands Police Station without a formal charge, without particulars of any alleged offence and without a stated legal basis for keeping him, she states, and his lawyer has been unable to reach him physically since 2 September. The application names Attorney General Mulilo Kabesha as respondent and seeks his release.

One case involves the most prominent opposition figures in the country. The other involves a serving officer whose name most Zambians had not heard before this week. Both turn on the same question, which is the point of the procedure.

All 18 petitioners face charges of treason, contrary to Chapter 57 of the Penal Code, together with prohibition of terrorism. No trial date has been set.

Mr Mundubile and Mr Zulu were separately charged with seditious practices at Kabwe Central Police Station on Friday over statements made about the outcome of the national vote. Defence counsel Sakwiba Sikota has said those charges concern conduct alleged to have occurred on 14 August and fall under Section 57 of the Penal Code, carrying a maximum of seven years on conviction. That case is yet to come before a court.

The State’s public position on the custody of the two men was set out by police assistant public relations officer Timothy Malumo at the time the sedition charges were laid.

“The Zambia Police Service reiterates its commitment to maintaining law and order, upholding the rule of law, and ensuring that all matters are handled fairly, professionally, and in accordance with the laws of Zambia,” Mr Malumo said, adding that the two remained in lawful custody until the next legal procedures were exhausted.

That statement addressed the sedition charges rather than the petition, which had not then been filed. The Correctional Service has separately rejected claims that it blocked lawyers from reaching the group, stating that access is governed by its established procedures. That response also predates the petition.

Neither position speaks to the return date. The venue for an answer is the respondents’ filing, and until that is lodged the only account of the two-day delay before the court is the one advanced by the petitioners.

Zambian law allows the State to arrest, to charge and to hold a person while a prosecution proceeds. The same law fixes the conditions under which that may be done, and gives the courts the power to say whether those conditions were met.

Both matters now await the State. The respondents in the petition have no date to file and the case has not been assigned to a judge. The ZNS officer enters his third week in custody without a charge.

Neither ruling, when it comes, will touch the strength of the evidence in any prosecution. Both will establish what the State must satisfy before a prosecution reaches that stage, and a return date is one of the things it must satisfy.