Magistrate Court refuses to release Rupiah Banda’s passport

THE Lusaka Magistrate’s Court has refused to release the passport of former president Rupiah Banda to allow him to travel to South Africa to attend a conference.
Banda is facing corruption and abuse of authority of office charges.
His lawyers had applied to the court to vary his bond conditions to allow the former president to travel outside the country.
The application was made before chief resident magistrate Joshua Banda and principle resident magistrate Obbister Musukwa.
Delivering his ruling, Mr Banda said varying bond conditions was beyond the court’s jurisdiction.
Mr Banda said the court has inherent powers which are used to secure a free and fair trial but that this power is limited.
He said inherent powers cannot override the statutes and that the role of the magistrate is to extend bond for the accused persons, not to vary the conditions.
Mr Banda said the High Court has the jurisdiction to vary bond conditions.
“While we have inherent power, that power has a limitation. The proper forum to make such an application is the High Court,” he said.
Meanwhile, Mr Musukwa also said the High Court and the police can vary bond and bail conditions, not the subordinate court.
He said the subordinate court cannot cancel or vary bond issued by the police but that it has the power to enlarge it.
Mr Musukwa said there was no provision in the law which allowed the subordinate court to make such variations and that Banda’s lawyers should file an application before the High Court.
“It is a grey area in the law as it has been practice for the subordinate court to extend the bond, not to vary conditions,” he said.
Earlier, Director of Public Prosecutions Mutembo Nchito said the application was wrongly before the court.
Mr Nchito said the magistrate’s court had no jurisdiction to vary the police bond conditions and only the police and the High Court can make such variations.
“It is our submission that it is not correct to ask the court to vary bond conditions. We submit that the matter is wrongly before you,” Mr Nchito said.
He said the law that allows the police to give bond is governed under the Criminal Procedure Code CPC and section 126 of the CPC stipulates that the High Court has power to vary the conditions of the bond.
Mr Nchito said police bond is different from bail and it is not correct for the magistrate’s court to vary bond conditions.
He said the magistrate’s court only has the jurisdiction to extend the time of the bond as has been the practice.
“What the accused has is a police bond, notwithstanding that he has appeared before this court, he is still enjoying police bond. If he has issues, let him go to the police and if he finds no joy there, let him go the High Court,” he said.
And defence lawyer Irene Kunda said the defence was not asking the court to cancel the bond but to vary its conditions and allow Banda to travel.
Mrs Kunda said the court had inherent powers to order the variation of bond conditions and that section 126 of the CPC deals with bail or deposit which can only be varied by the High Court.
“The accused person is appearing before this court and this gives it inherent power to hear such an application,” Mrs Kunda said.
And another defence lawyer Lubinda Linyama said the matter can be raised before the magistrate’s court as it was not a strange application.
“If the police officer is being oppressive, the only door to seek justice is this one. We are correctly before you and justice entitles us to a hearing and a determination can be made,” Mr Linyama said.
And the court has warned politicians, lawyers and the press against making comments on matters that are before it.
Mr Banda said people should desist from publicly discussing issues that are in court as this amounts to contempt of court.
“All politicians, advocates and the press are strongly warned against making comments on matters that are in court,” he said.