Celestian Mukandila was the witness in a case where Geoffrey Bwalya Mwamba is facing a charge of proposing violence by threatening to go for Edgar Lungu’s throat.
In fact we hear this Kasai has been going round swindling people of Matero East by holding himself out as a lawyer. Now that he met real lawyers in court, his ‘general business’ of swindling people will go down.
Lawyer Mweemba takes over cross examination
Mweemba: I believe you are literate not so?
Witness: Yes I am
(Hands him the indictment)
Mweemba: Read the words as they appear on the indictment
Witness reads: “I want to remind Edgar Lungu today that now, I will go for your throat”.
Mweemba: Those words are completely different from what you have told the court in examination in chief. Correct?
Mweemba: So as far as you are concerned the words on the charge sheet, you did not hear, but only what you have told the court not so?
Witness: As far as I am concerned, I was reporting…
Mweemba cuts him off: Only what you have told the court in chief is what you heard?
Witness: As reported speech yes
Mweemba: Do not volunteer answers. You will put yourself in very serious trouble and I am not going to give you another warning, this is the last one so just answer my question. I will repeat the question. The words as they appear on the indictment, as far as you are concerned you did not hear them but all that you heard is what you have told the court in chief right?
Mweemba: And you said you are a lawyer?
Mweemba: Does that university quality to take you to ZIALE?
Witness: Yes it does
Mweemba: Who taught you criminal law?
Witness: That time it was uh… Mr…uh…Mr Mwewa if I recall well.
Mweemba: Which Mwewa?
Witness: By then he was assistant commissioner of police, something like that.
Mweemba: Are you sure
Witness: He was working with Zambia Police
Mweemba: And he taught you that this offense is an inchoate offense?
Witness: Ummm, my…
Mweemba: Is that what he taught you?
Witness: My interpretations is…
Mweemba: Is that what he taught you sir?
Witness: My recollection is that…
Mweemba: Answer the question. You are a lawyer, you claim to be a lawyer
Mweemba: So you just dreamed of this out of your own figment of imagination that this offense is an inchoate offense right?
Mweemba: How many inchoate offenses do you know as a lawyer?
Witness: Quite a number sir
Mweemba: And you are serious about that as a lawyer that there are a number of inchoate offenses? That is what you want this court to believe?
Mweemba: Answer the question, no one has asked you for a reason. (repeats question)
Mweemba: Ummmm, give us examples of inchoate offenses. And as you answer that question, remember that ignorance is not a defense.
Witness: May I be availed with the Penal Code so that I refer to it?
Mweemba: No, you are a lawyer, you do not need the Penal Code. You were speaking with confidence in chief that you advised the police that this is an inchoate offense so you don’t need the Penal Code.
Witness: Like I said, if I am availed a Penal Code, I will point at them.
Mweemba: The question is very simple, it is either you know or you don’t know. Okay, what did you mean when you told the police that this is an inchoate offense?
Witness: An inchoate offense basically would be an offense where the police don’t need to wait for the actual act to be committed.
Mweemba: And you passed your criminal law?
Witness: Yes I did.
Mweemba: With that definition of an inchoate offense in mind?
(laughter in courtroom)
Witness: That’s the basic definition
Mweemba: What is your authority for that? Because that is not what an inchoate offense means.
Mweemba: Inchoate offense sir, are preparatory stages of offenses. Not what you are saying. Don’t you agree?
Witness: Like I said…
Mweemba: Don’t you agree with me?
Witness: Yes I do
Mweemba: Good. And you tried to mislead the court that they are many. There are only three categories don’t you agree with me again? They are not many as you put it, they are only three.
Witness: Mumbles something
Mweemba: Answer my question (repeats)
Witness: On that one, I…
(Mweemba continues trying to get witness to answer his question for a little while longer)
Mweemba: Look sir, I don’t want to send you to prison. You are a lawyer, don’t be evasive. I don’t want to apply that you are sent to prison, that can happen. (repeats question)
Prosecutor intervenes: Just answer
Witness: Yes I do
Mweemba: Do you know the three categories?
Witness: I might have to refer to the Penal Code
Mweemba: Do you know?
Witness: Not at the top of my head
Mweemba: You don’t know. So you were telling police what you didn’t know?
Mweemba: Okay, since you don’t know, I will not go there. Let us go to the offenses themselves…you did not see the accused addressing a particular assembly not so?
Mweemba hands witness the indictment: Read the statement of the offence and the particulars of offense loudly.
Witness: “Proposing violence or breaches of the law to assembly contrary to section 91 (a) of the Penal Code Chapter 87 of the Laws of Zambia. Particulars of offense being Geoffrey Bwalya Mwamba on 2nd March 2016, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia without lawful excuse to an assembly did make a statement indicating or implying that it would be incumbent or desirable to do an act calculated to bring death or physical injury to His Excellency Edgar Lungu the President of the Republic of Zambia to which he said ‘I want to remind Edgar Lungu today that now, I will go for your throat’”.
Mweemba: Did you see him addressing an assembly?
Mweemba: You don’t even know where this so called speech was made from do you?
Mweemba: And you do agree with me that there can be no offense of this nature if the address is not to the assembly not so?
Mweemba: There was no assembly so this case has collapsed. Let’s go to Frank Bwalya. Frank Bwalya did not even address the assembly, you simply told him not so?
Witness: I called him, for him to listen to the news
Mweemba: Yes, as far as you are concerned, he did not see the accused addressing an assembly?
Mweemba: Let’s go to the radio station. This case is confined to the radio station, Frank Bwalya and yourself. Police are simply recipients of the report. So the radio station did not witness this assembly right? You simply heard it on the news
Mweemba: Let’s go to the police. The officer who recorded your statement was simply listening to you, he did not witness the accused addressing the assembly not so?
Mweemba: So why are we here? None of these people saw the accused addressing an assembly. This offense, you have already agreed, cannot stand without an assembly not so?
Witness: Is that a question?
Mweemba: Yes. You are a good man, just answer
Witness: It depends on the definition of the word assembly
Mweemba: Don’t say depending, that’s hypothetical. Let’s talk about facts, you know that this offense cannot stand without an assembly right?
Witness: Depending on the definition of assembly, yes.
Mweemba: Yes what?
Witness: Yes, it will not stand if there is no assembly
Mweemba: Yes…so from your evidence, maybe there are other institutional people that we don’t know, which people were addressed by the accused?
Witness: Ummmm, I am not aware of where, but I listened to the radio. (laughs) because there was a recording.
Mweemba: So you came to address the court without knowing your facts as to which assembly was addressed? Am I right?
Mweemba: Give us an example of someone who was addressed as a matter of fact.
Witness: As a matter of fact, I only know that it was recorded and I listened
Mweemba: But you didn’t witness the assembly yourself
Mweemba: You didn’t even make an effort to speak to anyone from Hot Fm not so?
Mweemba: Apart from Hot FM, you did not speak to any journalist?
Witness: No I did not
Mweemba: The accused, apart from the statement you heard, he did not take any action in confronting the president?
Witness: Not that I am aware of
Mweemba: He did not even meet anybody to actualize the words?
Witness: Not that I am aware of
Mweemba: Now to your knowledge, going for anybody’s throat is it an offense?
Witness: To my knowledge it is threatening
Mweemba: Is it an offense? I haven’t said is it threatening. Is it an offense?
Witness: Yes it is
Mweemba: Contrary to which provision?
Witness: It is an offense in that…
Mweemba: Contrary to which provision? You are a lawyer sir, that’s what you told us.
Witness: By definition, it is not an offense, I withdraw
Mweemba: Thank you. You said you have withdrawn, what have you withdrawn?
Witness: The previous answer I gave
Mweemba: ohoo? You are a good man sir. It is not an offense, very good.
I would have loved to continue but I have quoted these words ‘I will go for your throat’ and you have told the Court that it is not an offense so there is no need for me to continue, it is not an offense. I end here.