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(15)
(Criminal Jurisdiction)
BETWEEN:
AND
JUDG MENT
announced our decision and dismissed the appeal. We directed and ordered
that the trial in the Subordinate Court should proceed without any due delay.
(16)
This is an appeal against the Ruling of the High Court refusing the
matter in which he was appearing before the Subordinate Court so that the
The history and the facts of the appeal were not in dispute. The
of the National Assembly. Following upon the removal of the immunity, the
Zambia Police Service. He was arrested and jointly charged with others
with several counts of theft by Public Servant, contrary to Sections 272 and
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On 24th February 2003, the appellant and others appeared before the
KI.5 billon in his own recognizance. He was asked to surrender his passport
of an Originating Notice of Motion, pursuant to Section 80(1) (a) (b) (c) and
Zambia, seeking for an order for change of venue that he be tried by the
High Court instead of the Subordinate Court. The application was supported
the National Assembly, removing his immunity and copies of the charge
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(4) That these and several other constitutional issues can only be
determined by the High Court in terms of Article 28 (2) of the
Constitution of Zambia and that therefore such an order is
expedient for the ends ofjustice herein.”
After setting out the provisions of Section 80 (1) and (3), the learned
Judge found that the Section empowers the High Court to change the venue
for trial either before another Court or before itself whenever it is made to
appear to the Court that grounds as contained in paragraphs (a) (b) and (e) of
Section 80 exist. Dealing with the specific grounds as set out above, the
learned Judge found that there was no basis in the ground alleging that the
appellant cannot have a free, fair and impartial trial in the Subordinate Court
difficulty likely to rise, namely; whether the appellant was a public servant
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4. That the learned Judge grossly erred both in law and in fact in
holding that whether several questions of law of unusual
difficulty are likely to arise is a matter of evidence, which can
only be determined after hearing evidence.
5. That the learned Judge erred in law when he held that the
resolution by the National Assembly allows the Applicant to be
charged with any criminal offence for any act committed by
him.
address, Mr. Simeza informed the court that in arguing the five grounds, the
first ground was to be highlighted and that the arguments on the first ground
would swallow most of the grounds with the exception of ground five.
The gist of the written and oral heads of argument and submissions on
the first ground as argued, first by Mr. Simeza and secondly by Mr.
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is simply to make it “appear to the High Court” that either a free, fair and
impartial inquiry would not be had in the Subordinate Court; or that some
questions of law of unusual difficulty are likely to arise in the matter. It was
submitted that the appellant had demonstrated that a fair and impartial trial
would not be had in the Subordinate Court and that some questions of law of
unusual difficulty were going to arise and not likely to arise. It was pointed
out that in the Court below, it had been argued that the action was not
argued that reference to Article 18 (1) of the Constitution was made to show
that a fair and impartial trial in terms of that Article could not be had as fair
trial means “all persons shall be equal before the court.” Other references
made in the court below related to harsh bail conditions imposed by the
the written heads, that for a free and fair trial to be held, the judiciary must
be independent; but that in the instant case, the appellants’ contention was
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particular the President, had the capacity to control and direct the judiciary
in the discharge of its function. It was pointed out that the appellant’s case
In the written and oral arguments, it was also pointed out that it had
been demonstrated in the Court below that the appellant was intending to
President and by the Task Force’s broadcasts which were made to convey
the message that the appellant was guilty of the charges against him,
coffers which demonstrated that the appellant could not have a fair trial. Mr.
Simeza argued and submitted that the issues were never raised in the Court
below for the court below to determine at that stage, but raised to illustrate
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the seriousness of the matter and to underscore the issue that they could not
be raised before the Subordinate Court unless a venue of the case was
changed. Mr. Simeza submitted that the appellant had raised the various
a matter of course and that the applicant need not prove anything.
arise. But these are the very submissions that are the basis of ground three
which were said to form the second issue of ground one. The gist of what
was termed the second issue on ground one is that the appellant had been
arrested and charged with a criminal offence on the premise that Article
43(3) of the Constitution had been satisfied. According to the written heads,
both the High Court and the Supreme Court had not determined the province
of the activities or actions that can be said to have been done by the
President in his personal capacity and those done in his official capacity.
This issue, according to the written heads, had to be resolved before trial
could begin, which issue could not be resolved by the Subordinate Court. A
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number of matters were raised under this second issue of ground one among
the appellant being charged with the offence not founded on the allegations
made by the President. The submission was that the Subordinate Court
could not competently address these issues and had no capacity to determine
ground two which ground was briefly covered by Mr. Sangwa who
contended that the references were made merely to demonstrate that there
was no likelihood of a free and fair trial and hence the need to have the
According to Mr. Simeza, they had given the instances to the court to
application yet had been made before the High Court but that this was
Mr. Sangwa argued grounds 3, 4 and 5. The brief written and oral
heads of argument by Mr. Sangwa on ground three were that the issues
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before trial.
holding that the resolution by the National Assembly allowed the appellant
to be charged with any criminal offence for any act committed by him, the
short arguments were that the issue of the resolution was raised for the
purposes of illustrating the fact that there were serious issues to be tried
before the appellant’s charges could be heard and determined, but too
issues raised by Article 43(3) had not been articulated by the High Court and
Judge by holding that because there were other persons jointly charged with
the appellant and that the court could not make an order without hearing
them, the submissions were: that the parties never canvassed the issue; that
the court fell into serious error; that the court was under obligation to only
consider issues raised in the documents before it; that the concerns about
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parallel trials were unfounded; and that the order for change of venue cannot
Mr. Mchenga, in his short reply to the first four grounds, made
gave reasons for his findings. In addition, he adopted his submissions in the
opportunity should have been given to the other accused if an order for
change of venue had to be made. Mr. Mchenga supported the findings of the
learned Judge and to the detailed and spirited submissions on behalf of the
did not follow the order of the grounds of appeal. For this reason, we shall
deal with grounds one and two as one ground. According to Mr. Simeza, in
prove anything, but “simply” make it “appear to the High Court,” for
instance, as in the case at hand that a fair and impartial trial could not be had
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argument. Firstly, under Section 80, the High Court has a discretion to
appear” and not just “simply” appear as contended or just list instances. The
phrase “Whenever it is made to appear to the High Court “- has, in our view,
not only been misunderstood but over simplified. Indeed, the word “simply”
as used by Counsel does not appear in the Section. In our view, the phrase
We cannot accept the proposition that there exists, in the High Court,
a practice that applications for change of venue made under Section 80 are
granted automatically. While we agree that the High Court was not called
upon to determine the issues of bias, the court had nonetheless to be satisfied
on the available affidavit evidence that a case of bias had been made to
to or demonstrated therein.
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courts of the Judicature to any person charged with any criminal offence.
Thus, a fair hearing is not only available or limited to the High Court.
hearing only in the High Court. This is not correct. Article 18 guarantees a
fair hearing even in the Subordinate Court. Indeed, if the appellant was
aggrieved with the conditions of the bail imposed by the Principal Resident
Magistrate, he was entitled to apply to the High Court for variation of the
conditions. This he did not do. But we cannot accept that harsh bail
conditions was evidence of bias and that the appellant could not have had a
take note that the appellant neither applied before the Subordinate Court nor
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learned Judge was, therefore, on firm ground in holding that the provisions
never raised or made before the Subordinate Court. The court correctly held
that Article 28(2) had no application in the proceedings that originated in the
High Court.
We agree that the appellant raised many issues in his application. But
we cannot say that by merely listing and citing those issues, he made it
appear to the High Court “that he was unlikely to receive a free and fair trial
to warrant the court exercise its discretion to order change of venue. In fact,
some of the issues raised were totally irrelevant to the application for change
relevance at all to the application for change of venue because there was no
those Articles.
determination of the issues raised was therefore not premature. This appeal
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two which attack the learned Judge’s finding that there was no basis in the
ground alleging that the appellant may not have a free, fair and impartial
trial before the Subordinate Court as guaranteed under Article 18(1) of the
fair and impartial trial in all the courts in Zambia. Ground two also fails.
The third ground attacks the learned Judge’s holding that whether
several questions of law of unusual difficulty are likely to arise was a matter
the written and in the oral arguments was not argued with any serious
vigour. For our part, we agree with the learned Judge that whether the
change of venue. We are, however, baffled that the issue was even raised in
trial has since commenced before the Principal Resident Magistrate. But we
are constrained to observe that the manner ground three was argued suggests
that on a charge of theft by public servant one cannot be found guilty of theft
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Hie fourth ground, also half heartedly argued, was that the learned
Judge erred in law when he held that the resolution by the National
Assembly allows the appellant to be charged with any criminal offence for
any act committed by him. According to the arguments by Mr. Sangwa, the
issue of the resolution of the National Assembly was raised for purposes of
illustrating the fact that there were serious issues to be tried before the
appellant’s charges can be heard and determined but that these issues were
too difficult for the Subordinate Court to resolve. It was also argued that
there was need to determine whether the position taken to arrest and to
prosecute the appellant was consistent with Article 43(3) of the Constitution
as the High Court and the Supreme Court did not articulate the issue.
The raising of this ground too baffles us. First, issues in a trial are not
are alive to the fact that both Mr. Simeza and Mr. Sangwa represented the
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appellant in Appeal No. 125 of 2002 (now known as the immunity case) in
which the appellant had challenged, before the High Court, the decision of
“Mr. Sangwa further argued that Article 43(3) sets out pre
must be known and must exist. He submitted that this was not the case
our view, would be against the spirit, the scope and the purpose of the
meaning of Article 43(3) does not stipulate that specific charges have to
(34)
We find it extremely surprising that Mr. Sangwa should reopen the same
arguments in the High Court and in this court in this case. In our view, this
is a question of Mr. Sangwa and Mr. Simeza refusing to accept the judgment
of the court because they do not agree with it. But Counsel are expected to
accept the finality of decisions of superior courts whether they agree with
them or not. The position taken by Counsel in our view has not been in the
and costs. We stand by what we said in the immunity case. The resolution
of the National Assembly allowed the charging of the appellant with any
The fifth ground was that the learned Judge misdirected himself by
holding that because there were other persons jointly charged with the
appellant, the court could not make an order affecting them without hearing
them. The short arguments on this ground were that the parties in the court
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below did not canvass for this issue; that the court fell into serious error; that
the court was under obligation to only consider issues raised in the
documents presented before it; that the concerns about parallel trials were
unfounded and that an order for change of venue could not affect or
We agree that the issue was not addressed and canvassed. But we
cannot accept that the issue was not raised. The appellant’s affidavit
appellant jointly with others. We are satisfied that the issue was raised. The
learned trial Judge was entitled to consider the effect of granting an order for
change of venue to the appellant alone. For our part, fears for a parallel trial
the written heads of argument that the order for change of venue could not
Counsel that the appellant would have been tried by the High Court while
the co-accused would have been tried by the Subordinate Court would have
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caused not only the inconvenience but also the prejudice and embarrassment
D.M. LEWANIKA
DEPUTY CHIEF JUSTICE
D.K. CHIRWA
SUPREME COURT JUDGE