STATE BID TO EXCLUDE KAFWAYA DEATH EVIDENCE FAILS

Court retains affidavit passages and raid footage explaining why Mundubile and Makebi sought refuge at UN premisesTHE court has rejected key parts of the State’s attempt to exclude evidence concerning the killing of former minister Mutotwe Kafwaya and footage of a raid on a Kabulonga residence by State agents from the constitutional bail proceedings involving Brian Mundubile and Makebi Zulu.According to a defence briefing on the ruling, the court held that the disputed material explained why the two petitioners feared for their lives and sought refuge at United Nations premises.The State had relied on their entry into the UN facility, and their departure following negotiations, to argue that they were flight risks.But the court found that this was a serious allegation requiring an opportunity for the petitioners to explain their conduct, including the circumstances that prompted them to seek protection.The ruling leaves on record the defence account linking their fears to Kafwaya’s killing and the raid.The State had asked the court to strike out paragraphs 6, 19, 20, 21 and 22 of the affidavit in reply, arguing that they introduced new and extraneous material.The court upheld the objection to paragraphs 6 and 21, which were expunged, but retained paragraphs 19, 20 and 22.On the video exhibit referred to in paragraph 22, the defence said the court rejected the attempt to exclude footage showing State agents breaking into the Kabulonga house.According to the briefing, the court referred to section 9 of the Electronic Communications and Transactions Act No. 4 of 2021 in explaining that evidence could not be excluded merely because it was a data message.The footage was also relevant to the petitioners’ explanation of why they feared for their lives and entered the UN facility.The decision allows the contested material to remain before the court for consideration. It does not itself constitute a final finding on responsibility for Kafwaya’s death or the circumstances of the raid.Following the ruling, the Attorney General and Director of Public Prosecutions made submissions opposing the substantive application for constitutional bail.According to the defence account, the State argued that the seriousness of the allegations required extensive investigations and that periods of 60 or 90 days were not excessive in the circumstances.The DPP also referred to previous treason proceedings in Zambia, arguing that constitutional bail had not been granted in those cases and urging the court against departing from that approach.Defence lawyers said they would distinguish those earlier cases and explain why the circumstances of the present proceedings justified bail.At the time of the briefing, the bail application remained under consideration, with the defence due to respond when proceedings resumed at 15:00 hours.

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