LUSAKA High Court Judge Wilfred Muma has sympathized with Chingola-based jerabo Baba Mulenga Kabaso, popularly known as Spax, and condemned the police for the passage of time taken to lay charges against him.
The High Court Justice has, however, declined to order Kabaso’s release, saying doing so would be deemed prejudicial and offensive to the rules of criminal justice.
In this matter, Kabaso had applied for leave to issue a Writ of Habeas Corpus Ad Subjiciendum, directing the police to present him before court to show cause why he should continue being detained.
He asked the Lusaka High Court to order for his release, arguing that his continued detention not only infringed on his constitutional rights, but also affected thousands of his workers who depended on him for their livelihood.
Kabaso cited the Attorney General and Zambia Police Service as respondents.
Judge Muma ordered the State to on March 13, this year, present Kabaso before court, but instead of him being presented before Judge Muma, the police caused him to appear before the Chingola Magistrates’ Court where he had a charge of murder explained to him and others.
However, Kabaso, through his lawyer Irvin Mulenga argued that the murder charge was null and void as it was done after a Writ of Habeas Corpus had been served on the police.
He said his client had not been charged by police since his arrest on February 26, 2020, forcing his lawyers to serve a Writ of Habeas Corpus on the police on March 10 for them to give reasons for his arrest and detention.
Mulenga argued that police, however, drove his client to Chingola where he appeared before the Magistrate and was charged with murder.
But the State argued that the Writ of Habeas Corpus was overtaken by events as the matter before court was to establish why Kabaso had been held without being taken to court.
And ruling on the matter, Thursday, Judge Muma noted that the service of the Writ of Habeas Corpus had the effect of staying any action by the respondent, including the staying of the act of charging Kabaso, pending determination of the Writ of Habeas Corpus.
“Nonetheless, the respondent went ahead charged the applicant and delivered him to Chingola Subordinate Court for explanation of the charge and, thereby, got subsequently remanded in custody. The act of the respondent pre-empting the due process of the Writ of Habeas Corpus has effectively altered the status quo as there is no longer anything to stay and the current position cannot be remedied by the order of the Court to bring back the body of the applicant in the face of the charges that have already been preferred against him,” he stated.
Judge Muma further said the order sought by Kabaso’s lawyer to declare the charges null and void would not only serve as an academic process, but would be deemed absurd and would not accord finality of the due process.
He, however, sympathized with Kabaso and condemned the State for the passage of time taken to lay charges against him.
“Counsel for the applicant urged this court to order the release of the applicant, but regrettably, this court cannot interfere with the criminal charges at this juncture as there are established and settled rules of procedure and practice, peculiar to our own criminal justice regime, which sets and outlines a road map in this respect. Therefore, the due process of the criminal justice system shall determine the fate of the applicant,” ruled Justice Muma.
“It is no longer within the province of this court to order the release of the applicant as doing so shall invariably be deemed prejudicial and offensive to the rules of criminal justice. My mandate in this matter has, therefore, expired in the circumstances.”