THE Director of Public Prosecutions (DPP) has entered a nolle prosequi in a case in which 16 suspected United Party for National Development (UPND) cadres were arrested for unlawful procession.
In this case, the 16 are charged with unlawful procession and are alleged to have been among the 25 that allegedly participated in an illegal procession with Chongwe member of Parliament (MP) Sylvia Masebo.
When the case came up for trial before principal resident magistrate Kenneth Mulife yesterday, the state applied to have the matter discontinued as they had received instructions from the DPP to enter a nolle prosequi.
But, defence lawyer Keith Mweemba raised an objection and asked the court to refer the case to the High Court for determination of whether the DPP can enter a nolle prosequi in a case which does not exist.
Mr Mweemba asked the court to quash the indictment and set his clients free or refer the case to the High Court.
“For the law to be law, it must be written and penalty should be defined for someone to face its sanctions. Therefore, a nolle can only be entered on a provision which exists,” he said.
Another defence lawyer, Martha Mushipe said it was an abuse of police powers and an infringement of human rights for a person to be brought to court on a non-existent charge.
And state prosecutor Zacks Yuma wondered whether the defence were asking for the indictment to be quashed or referred to the High Court for determination.
Mr Yuma asked the court for an adjournment to study the submission provided by the defence despite a nolle prosequi being entered which Mr Mulife allowed.
Meanwhile, Ms Masebo is challenging the High Court decision that allowed the DPP to prosecute her on criminal offences involving abuse of authority of office.
This follows a decision by High Court judge Petronella Ngulube to dismiss Ms Masebo’s application for leave to commence judicial review proceedings against the DPP’s decision to prosecute her on two counts of abuse of office in relation to her alleged cancellation of hunting concessions and dismissal of senior ZAWA managers.
According to a memorandum of appeal filed in the Supreme Court, Ms Masebo contends that the lower court misdirected herself in law and fact when she held that the matter did not present an arguable case meriting the granting of leave.
The Chongwe MP argued that the court was wrong when she held that she (Masebo) had not established a case fit for further investigation at a full inter parte hearing.