State overreach shouldn’t be flaunted as justice
…Concocted treason: How the State’s indefinite incarceration of Mundubile and Zulu subverts the rule of law
By Thandiwe Ketiš Ngoma
WHEN Director of Public Prosecutions (DPP) Gilbert Phiri stepped forward to defend the State’s continued pre-trial detention of Tonse Alliance leaders Brian Mundubile, his running mate Makebi Zulu and 16 co-accused, he did not offer a defence of justice. Instead, he presented a stark admission of standard state overreach.
Speaking to Phoenix News, Mr Phiri declared it “appalling” that Zambians expect criminal suspects to be taken to court shortly after their arrest, arguing that complex cases require “time and due diligence”.
He insisted that law enforcement agencies need breathing room to gather witness statements, assemble forensic material, and compile medical reports before presenting a case. To justify keeping political leaders locked behind bars without judicial oversight, he reached back decades into history, invoking long-past treason trials like that of Edward Jack Shamwana to argue that prolonged pre-trial incarceration is simply standard operating procedure in Zambia.
Strip away the official rhetoric, however, and the DPP’s statement crumbles under the weight of constitutional reality.
The anatomy of an unlawful incarceration
The State’s justification exposes a fundamental flaw in its approach to law enforcement and human rights: it has arrested citizens to find evidence, rather than finding evidence to arrest citizens.
The fallacy of “Investigating After Arrest”: In any constitutional democracy operating under the rule of law, thorough investigations must precede an arrest—not follow it. If the State lacked the witness statements, forensic reports and documentary evidence necessary to substantiate a charge, on what legal basis were Brian Mundubile and Makebi Zulu deprived of their liberty in the first place? Incarcerating opposition leaders while law enforcement goes on a fishing expedition turns pre-trial detention into pre-trial punishment.
Weaponising a non-bailable offense: Treason is an unbailable capital offence under Section 123 of the Zambian Criminal Procedure Code. By slapping political opponents with a treason charge while delaying their court appearance, the State effectively locks them away without any judicial oversight, any opportunity to apply for bail, or any chance to challenge the lawfulness of their custody before a judge. This is not due process; it is administrative detention disguised as criminal justice.
Dismissing the Law Association of Zambia: The Law Association of Zambia (LAZ) – the constitutional body tasked with safeguarding the rule of law—has explicitly called for the release or immediate court presentation of the accused. For the chief prosecutor of the Republic to label the legal fraternity’s demand for basic constitutional compliance as “appalling” reveals a dangerous contempt for independent legal oversight.
Invoking flawed historical precedents: Reaching back to the one-party era to cite the prolonged detention of Edward Jack Shamwana sets a regressive precedent. Decades of judicial reform, constitutional evolution and international human rights treaties exist precisely to ensure that the state can never again hold citizens indefinitely without trial.
Constitutional realities and international scrutiny
The DPP’s stance directly contradicts the clear mandates of Zambian law and international human rights frameworks:
- Article 13 of the Zambian Constitution: Mandates that any person arrested or detained must be brought before a competent court without undue delay. If an accused person is not tried within a reasonable time, the law dictates their release.
- Section 33 of the Criminal Procedure Code: Dictates that an arrested individual must be presented before a magistrate as soon as practicable, typically within 24 to 48 hours. Holding suspects for weeks while the prosecution builds a case violates the basic mechanics of statutory criminal procedure.
- The Writ of Habeas Corpus (Chapter 88): Designed specifically to prevent arbitrary State overreach, the law grants the High Court full authority to order the immediate release of any detainee whose continuous incarceration lacks valid, prompt judicial justification.
- International warnings: Around the globe—including warnings from United Nations (UN) human rights monitors—the practice of using heavy-handed security charges against political candidates to neutralise dissent during contested electoral periods has been repeatedly condemned as a violation of basic international norms.
The verdict
If the prosecution possesses credible, unassailable evidence that Brian Mundubile, Makebi Zulu, and their co-accused committed treason, it should have no hesitation in laying that evidence before the High Court today.
Hiding behind the complexity of the offence while keeping opposition leaders locked in prison cells is an evasion of justice. The law is clear, uncompromising and urgent: The State must produce its evidence in an open court of law immediately, or it must release the the detainees.
