Sat, 27 May 2017 10:56:47 +0000
THE trial of UPND president Hakainde Hichilema has to wait for a determination regarding the validity of the certificate committing him and five others for trial, which the defence is challenging.
Lusaka Magistrate David Simusamba allowed defence lawyers to seek judicial review over the Certificate of Committal signed by Deputy Chief State Advocate Mariam Ba-Matandala on behalf of Director of Public Prosecutions Lilian Shawa-Siyunyi.
Mr. Simusamba said yesterday that under section 82 of the Criminal Procedure Code, the DPP had power to delegate her subordinates to issue Committal Certificates through written instructions.
“A close scrutiny of section 82 of the CPC shows that State Advocates of any rank do not have the power to issue the Certificate of Committal on behalf of the DPP without her accompanying written instructions,” Mr. Simusamba said.
He said it had been a practice over the years that courts had committed people facing offences not triable by the subordinate courts to the High Court using Committal Certificates signed by State Advocates and public prosecutors without the DPP’s accompanying written instructions.
Mr. Simusamba said he could not determine the legality of such practice because there were no written authorities on the matter and that such determination was beyond his jurisdiction.
He, therefore, gave the defence 15 days in which to seek the judicial review, adding that if he did not receive the High Court’s determination by June 12, 2017, he would commit the accused persons. Hichilema and his co-accused have been remanded in custody until June 12, 2017.
Mr. Simusamba also told the court that he could not intervene in alleged contemptuous statements issued by Copperbelt Minister Bowman Lusambo and PF Deputy Secretary General Mumbi Phiri on the matter because the words complained of were uttered outside the court and defence lawyer Jack Mwiimbu did not follow correct procedure when he raised the complainant.
On constitutional issues which the defence wanted the court to refer to the High Court for determination, Mr. Simusamba said he had no jurisdiction to adjudicate on issues raised after issuance of the Committal Certificate.
