Legal Editor, Barotseland Post
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into over 500 languages.
On the 9th day of March, 2016, the accused, AFUMBA MOMBOTWA - A1, PELEKELO LIKANDO - A2, and SYLVESTER KALIMA INAMBAO - A3 were charged and convicted upon trial of the offence of TREASON FELONY Contrary to Section 45(b) of the Penal Code, Chapter 87 of the Laws of Zambia.
The particulars of the offence were that AFUMBA MOMBOTWA, PELEKELO LIKANDO, and SYLVESTER KALIMA INAMBAO, on a date unknown but between the 1st day of March, 2012 and 20th day of August, 2013 at Mongu, Sioma, Senanga, Livingstone and other places unknown in the Republic of Zambia, jointly and whilst acting together with others unknown, did prepare and endeavour to have Western Province secede from the rest of the part of the Sovereign Republic of Zambia.
In mitigation, it is submitted as follows:
The convict is aged 58 and a family man. He has responsibilities. He has been in custody since 6th December, 2014. He is first offender.
The convict is aged 62. He has been in custody since 6th December, 2014. He is a first offender. He is a family man with responsibilities.
SYLVESTER KALIMA INAMBAO
The convict is aged 55. He is a first offender.
I have heard and noted the mitigation on behalf of the convicts. The offence of Treason-Felony is a serious on. The offence committed undermined the authority of the executive power of the sovereign Republic of Zambia. Their enterprise had the potential to destabilize the entire nation. The sentence should therefore serve as a deterrent to would be offenders.
Section 45 of the Penal Code prescribes of upto twenty (20) years imprisonment for Treason-Felony. In exercising leniency, I sentence the convicts each to ten (10) years imprisonment with hard labour with effect from the date of arrest, 5th December, 2014.
DATE THIS 9TH DAY OF MARCH, 2016
DOMINIC YETA SICHINGA, SC, JUDGE
The copies are here linked for public records only.
Detailed (73 pages) Sentencing and Judgment found on the link: Afumba Mombotwa and Other Vs the State
The treason trial involving four Barotseland independence leaders, Administrator General Afumba Mombotwa and his three co-accused is coming up for Judgment tomorrow, Wednesday 9th March, 2016 at the High Court of Zambia in Kabwe.
The four were arrested on 5th December, 2014 and charged for treason on the allegation that on an unknown date but between March 1, 2012 and August 20, 2013 while in Sioma district, the four, Afumba Mombotwa, Kalima Inambao, Likando Pelekelo and Paul Masiye jointly acting together with unknown people conspired to secede "Western Province" from the rest of Zambia, a charge they have denied.
The charge is on account of the four’s alleged role in carrying out the people of Barotseland’s desire for self-determination outside of Zambia after the latter refused, permanently, to restore the pre-independence treaty, the Barotseland Agreement 1964 which gave the territory of Barotseland relative autonomy within the sovereign state of Zambia.
The 1964 agreement was unilaterally abrogated and annulled by the Zambian government in 1969, with Barotseland territory dismembered and treated like a mere province of Zambia, the ‘Western Province’, while repeated calls for its restoration have been denied since then. In March 2012, however, at a regularly held Barotse National Council (BNC), the Barotse unanimously and formally accepted the abrogation, deciding, thenceforth, to pursue self-determination of Barotseland outside of Zambia’s sovereignty. The Barotse National Council (BNC) is the supreme and most representative decision making organ in Barotse governance systems whose decisions stand binding on all other Barotse institutions including the Litungaship (monarch).
The current treason trial that started in August of 2015, some eight months after Afumba’s arrest, has largely been held in secrecy, with media black-out while attendance to court proceedings was restricted to only 20 pre-approved attendants.
Circumstances of the trial have been highly unprecedented, in its secretive handling, for such a trial that is first of its kind in the legal process of Zambia. Even judgment day was kept secret, until independently acquired by this publication a short while ago.
Although at short notice, it is highly expected that the Barotse will travel from far and wide to offer solidarity to their leaders who have been in deplorable incarceration since December of 2014, described to be worse than conditions for pigs by those who have visited, including one prince of Barotseland, Akashambatwa Mbikusita Lewanika.
It now remains to be seen whether or not the Barotse will have justice in the Zambian court system that neither recognizes the Barotseland Agreement 1964 nor indeed the very history that founded Zambia as a unitary state.
The four will face a death penalty, should they be found guilty of the crime they are accused to have committed.
The Barotseland National Youth League, BNYL, have written and petitioned the Commonwealth concerning what they consider unfair incarceration and trial of Barotseland Administrator General Afumba Mombotwa and his three treason co-accused, Likando Pelekelo, Sylvester Inambao Kalima and Paul Masiye Masiyaleti.
The four were arrested for allegedly spearheading the ‘secession of western province’ from the rest of Zambia, a charge they have since denied, awaiting ruling in Zambia’s Kabwe High Court sometime in March this year.
They have been imprisoned in most deplorable prison conditions since December 5th of 2014.
The petition was sent accordingly and is here below reproduced for public records only.
23rd December, 2015
RE: BAROTSELAND ISSUE NOT TREASONABLE ACCORDING TO INTERNATIONAL LAW
The above captioned refers.
Your Excellency the matter of Barotseland’s independence legally does not amount to the subject offense of treason, due to the legal fact that Barotseland has been a nation since early 1800s, way back before neither Northern Rhodesia nor Zambia came into existence.
As a matter of historical facts Northern Rhodesia only came into existence in 1911, when the territories of North-Eastern Rhodesia and North-Western Rhodesia were brought together by John Cecil Rhodes to form Northern Rhodesia, which signed an agreement with Barotseland on the 18th May, 1964 in London, the United Kingdom, this agreement was known as the BAROTSELAND AGREEMENT 1964 and it was witnessed by the commonwealth.
Fortunately for the Barotzish this agreement NEVER entered into force. In 1969 the Zambian government under the Kenneth David Kaunda regime unilaterally abrogated and repudiated the said agreement which was not in force. The question that we ask is what was the Zambian government abrogating? The agreement that never entered in force?
The legal axiom states that “NO ONE CAN CLAIM ANYTHING UNDER THE TREATY OR AGREEMENT THAT IS NOT IN FORCE”.
As the above legal axiom alludes Zambia cannot claim anything that is under the Barotseland Agreement 1964, which is not in force. In fact by law of treaties, agreements and contracts, Zambia is occupying Barotseland illegally, because the Zambian government never honored the Barotseland Agreement 1964 which is a successor treaty.
Moreover, even the trial of His Excellency the Administrator-General Rt.Hon. Afumba Mombotwa and his colleagues is illegal; therefore, it is null and void according to the international law on Treaties such as the VIENNA CONVENTION Articles 27, 60 and 70. It states that “when the other party to the treaty violates the terms and conditions under the treaty either in whole or in part, the innocent party shall have the right to invoke the termination”.
This simply means that the action by the Zambian government to unilaterally abrogate and annul the now null and void Barotseland Agreement 1964 legally has reverted Barotseland to her original status of 1864. This is in conformity with the POSTLIMINIUM DOCTRINE.
The Zambian government and its judicial system (courts) are deliberately ignoring the basic principles of law and tenets of natural justice.
The 2014 Zambian court case of NAYOTO MWENDA, BORIS MUZIBA AND SIKWIBELE WASILOTA VS THE PEOPLE OF ZAMBIA, in this case the trio who are Barotseland Nationals clearly reminded the Zambian magistrate Mr. Julius Malata who is illegally operating in Barotseland that Natural Justice and international law MUST be applied in their case due to the legal fact that ZAMBIA CANNOT BE A COMPLAINANT AND JUDGE IN ITS OWN CAUSE, but Malata stated that natural justice and international law do not apply in Zambia.
The trio went further to apply for bail according to the International Bill of Rights, but Malata still denied them bail under international Bill of Rights stating that Zambia is not bound by international law.
The trio went on to apply that since the matter which is before the Zambian court, is an international one which involves two (2) countries of Barotseland and Zambia ,it should therefore, be transferred to an independent and impartial international Tribunal such as the commonwealth court. Still magistrate Malata refused stating that Zambia is not under international law.
Finally the trio were convicted and sentenced to three (3) years imprisonment with hard labor. This was done just to persecute these gallant Barotseland Nationals for exercising their inherent and inalienable freedom of conscience and right to self-determination as per UNIVERSAL DECLARATION OF HUMAN RIGHTS and INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ARTICLE 1.
As seen from the above the magistrate was not following the law and tenets of natural justice, instead he followed instructions from Zambian politicians of the ruling party the patriotic front (PF) who are his pay masters. The case record for the case above to be sent to the commonwealth and all the international community and foreign countries later but very soon.
Furthermore, the current case of His Excellency Rt.Hon. Afumba Mombotwa and his Barotzish colleagues which is before the Zambian High Court, we see it going the same way, because there is no justice in Zambia, so long they are dealing with the Barotzish, who exercises his/or her inalienable right to self-determination as per UN charter and African Charter on Human and Peoples’ Rights Article 20 respectively. Attached to this letter is the written submission of Afumba Mombotwa and others Vs the people of Zambia in their defense to the alleged treason felony case which is before the Zambian High Court, this matter is similar to that of NAYOTO MWENDA AND TWO OTHERS VS THE PEOPLE OF ZAMBIA CASE which is cited above.
The Zambian politicians, police, army and courts have teamed up to ensure that they suppress our inherent Right to self-rule, freedom of conscience and freedom of speech.
We appeal to the commonwealth and other international organizations to immediately intervene in the illegal activities of the Zambian government which they are carrying out in Barotseland due to the legal fact that Zambia is occupying Barotseland illegally contrary to the UN Security Council Resolution 276.
South-West Africa (Namibia) VS South Africa, the 1970 international court of Justice case (ICJ) ruled that south Africa was ruling south-west Africa illegally and it therefore, ordered that the Pretoria Administration be removed from the present day Namibia without delay. This is an analogous case to the case of Barotseland Vs Zambia.
Since the commonwealth is one of the signatories to the dead and buried Barotseland Agreement 1964 which is null and void, we therefore, appeal to the commonwealth to order the Zambian government to immediately and unconditionally release the Administrator-General of Barotseland His Excellency Rt.hon. Afumba Mombotwa and his colleagues who have not committed any crime against Zambia, instead it is the Zambian government themselves who have committed crimes against Humanity and Genocide contrary to Statute International Tribunal Articles 4, 5, 6, and 7 as well as the Genocide Act 1948.
Also hereto attached is Hon. Afumba Mombotwa’s full Treason Court Trial written submission which was made at Zambia’s Kabwe High court on the 18th of December 2015.
Mr. Sikwibele Wasilota
Barotseland National Youth League (BNYL)
All foreign countries
The Acting Administrator-General, Royal Barotseland Kingdom
The Deputy Chairman –General, BNYL
Mr. Edgar Chagwa Lungu, president of the Republic of Zambia (state house, Lusaka Zambia)
All citizens of Barotseland, Royal Barotseland Kingdom
Mr. Likando kalaluka, Attorney-General of Zambia
Incarcerated Barotseland Administrator General, Afumba Mombotwa and his two treason co-accused, Likando Pelekelo and Sylvester Kalima have jointly made their final written submission in their defense to the charge of treason in a matter that is before Judge Dominic Sichinga at Zambia’s Kabwe High court.
Meanwhile, the State Prosecutors’ submission is expected to be made on the 8th of January, 2016, while ruling has been reserved for some time in March 2016 during the next Criminal Court Session.
Here below is their full written submission which they made yesterday, 18th of December 2015.
IN THE HIGH COURT OF ZAMBIA HOLDEN AT KABWE
AFUMBA MOMBOTWA AND OTHERS
SUBMISSION OF THE ACCUSED:
EXTRACT FROM LITUNGA ILUTE'S LETTER TO THE ZAMBIAN PRESIDENT CHILUBA, 4TH NOVEMBER 1993
"The Government should be aware of our interpretation of our right to secede, the Barotse deserve the Right to Revert to their original status if the Agreement under which they intended to achieve unity can no longer work.
The rest of Zambia cannot hold us in perpetual enslavement on account of agreement which we entered into voluntarily.
In other words, we cannot be expected to adhere to the agreement which the other party to agreement does not recognize. There is NO TREASON Mr. President."
May it please Your Lordship to consider our submission with regards to accusation of secession; charge termed TREASON.
Our submission statement will be subdivided and shall deal with:-
(i) Assertion, allegations and Notions
(ii) Issue of law and Agreement and
But not in a chronological order.
1. I wish to begin with the Notion that Barotseland and Northern Rhodesia (Zambia) made one country or Nation.
The truth is that the relation that existed between Barotseland and Britain was to be exactly the same relation between Barotseland and Zambia. This is self-evident from the fact that there was an Agreement between Barotseland and Northern Rhodesia (Zambia) arrived at and concluded at commonwealth Relations Office in London. No part of Zambia entered into Agreement with Zambia.
2. In construing Agreements, it is not words written that matters but the intention. Therefore, by the Barotseland Agreement 1964, Zambia simply inherited the obligations of Her Majesty the Queen of Britain over Barotseland. Barotseland did not surrender her Sovereignty to Zambia. Obviously, the constitution of Zambia 1964 confirmed transfer of obligations by the Queen [Viz; Independence Order, section 20].
3. The Agreement was a presupposition intended to enter into force at Northern Rhodesia's Independence. However, it was terminated by the parliament of Zambia in 1969 before entering into force; and by law, the Agreement that has not entered into force is not legally binding.
4. Our position has not been to question the validity of the Acts of parliament of Zambia. No Lozi person could do that, what we do not condone is the idea of terminating, on one hand and longing or claiming to enjoy the rights derived from the Agreement that is terminated. This is unlawful and heart-breaking to the innocent part. To entertain such attitude is not only to support injustice but to love what is evil.
Dr Kaunda's policy of coercion and hegemonic dominance led to the abrogation of the Agreement. No question about it.
Firstly, it is not appropriate to proceed with the matter of secession by relying on penal code, without REFERENCE TO THE CONSTITUTION or rather the issue of secession cannot be delinked from the constitutional matter.
Secondly, we have to find out the definition of TREASON AND SECESSION in order to know what qualifies these offences.
According to the Oxford Advanced Leaner's Dictionary and Collins Dictionary definition;
(i) Treason; means BETRAYAL of one's country; or sovereign (King).
(ii) Secede; means to WITHDRAW formally from a Union or Federation of Political alliance.
Moreover, treason is an Act like treachery or disloyalty to one's country or King. Indeed our country is Barotseland, and we have not betrayed it; therefore, according to the definitions above, we cannot withdraw from alliance where there is none, in existence. The issue of secession could be referred to in the situation of Canada and Quebec. Legality; whatever is legal is permitted by law. Therefore, it follows that, there is no legality in the claim that WESTERN is part of Zambia. In this regard what is worthy noting is that, at its ESTABLISHMENT Zambia was not a unitary state, which makes the issue of secession baseless. No law can apply retrospectively.
In 1964 Barotseland was there, as for Western it was not there. In regard to our fate "All the Acts done by us and materials in court are meant to imply that we seceding from Zambia, but facts on the ground prove the contrary. For more enlightenment, reference can be made to Constitutional Review commission Report (CRC) of 2003 page 509 executive summary with highly qualified Zambian lawyers among them.
Rationally and legally we could secede if the Agreement that associated Barotseland with Zambia was in force. As the case is, we are having difficulties in understanding the meaning of Unitary state alluded to by Ngulube; whether the essence of termination of Agreement was unification or results in unity. Considering that legal axiom which states that "A THING IS MADE AND DESTROYED BY ONE AND THE SAME MEANS", then relation made by Agreement is destroyed by abrogation of the same Agreement.
The matter simply requires interpretation of law and proper definitions by court; since relation was based on express conditions.
The Zambian Judiciary is an organ of the Zambian Government that terminated the Barotseland Agreements. In this regard, does Justice allow one to be a Judge and Jury in his or her own cause?
1. Listening attentively to the prosecution's witnesses one notes that they talked (2) two things viz;
Especially Pw8 Ngulube and Pw10 Chafunga. While (6) six witnesses dealt with celebration, (2) two referred to how we were arrested at Kasaya.
The matter in the mind of Police and on record is SECEDE. Indeed the nature of our case has no precedence in Zambia or Africa, for it raises so many questions without answers such as what is secession? Is Western province a legal part of Zambia? Is Zambia a monolithic state? What is unitary? Certainly only the High Court can provide answers to these questions.
With regard to LINYUNGANDAMBO, It is a movement that believes in justice and rule of law, not arbitrary control. It never advocated for secession but that Zambia must realize and relinquish her obligations she inherited from Her Majesty the Queen; Elizabeth II of Britain, as envisaged by the ZAMBIA CONSTITUTION REVIEW COMMISSION of 2003. This is what happened when agreements with Britain ceased; and this is NOT SECESSION.
3. According to ZAMBIA INDEPENDENCE ORDER sec 20; Barotzis did not surrender their SOVEREIGNTY and TERRITORY to any new state.
POINTS TO PROVE SECESSION ARE:
i) There, must be more than (1) one territory that came together.
ii) There must be PROVISIONS of LAW or agreement that are binding.
Note, Barotseland map was drawn on 11th June, 1890 before Zambia came into dream; therefore it is illogical to claim that we are seceding from Zambia.
Barotseland cannot secede from Zambia by acknowledging termination of the agreement.
The arresting officer Chafunga concluded in cross examination by confessing that (4) four were charged with treason ON THE BASIS of their role and LITERATURE, but the truth is Ngulube obtained warrant of arrest before he came across any literature.
ASSERTION: Between 1st March 2012 and 20th August 2013, we prepared to secede WESTERN PROVINCE from the rest of the sovereign republic of Zambia [section 60 (h) of the penal code].
RESPONSE: The police have brought the matter of their perception in court. Our understanding is that WE ARE DEALING WITH THE ISSUE OF LAW and not a hypothetical matter.
By Law of evidence [Estoppels] and by record, nobody can argue with written words. Needless to explain, we are concerned with Barotseland our country but:-
(i) The case refers to Western Province being part of Zambia.
(ii) The state talks about secession, Barotzis talk about restoration and emancipation; quite different terms.
Firstly, let one establish a fact that Western Province is a legal part of Zambia or historical part of Zambia, before the matter could be admitted for determination; otherwise we are dealing with a PHILOSOPHICAL ISSUE or POLITICAL PHENOMENON!!!
Really no one in his right mind can start talking about divorce before establishing a fact of marriage.
We are dealing with Written Law [Viz; Constitutional Law, Law of Treaties, Law of Contracts and international Law] that requires interpretation and not legal fiction.
Fortunately, the Constitution of Zambia does not contain a provision that refers to Barotseland as being part of Zambia; may be it refers to western province.
Besides, we doubt whether the Constitution of Zambia defines its territory as that which comprises the territories that signed the Barotseland Agreement 1964.
Our understanding is that Law operates on legality while politics operates on abstract principles. It follows then that Western is a result of declarations; and declarations are not laws but political phenomena.
Doubtless, the notion that Barotseland is part of Zambia is "caucus omissus" in the constitution: she only signed the Agreement that was nullified.
There has been no Federal or Union Act and therefore Barotseland, ipso FACTO DOES NOT SECEDE; if to secede means to separate.
NB: BAROTSELAND was a British PROTECTORATE, and by British standard of law, a protectorate is a territory in which sovereignty does not belong to the QUEEN OF BRITAIN but to the King and people of that protectorate.
The Zambian law referred to OBLIGATIONS. Nonetheless, INHERITING OBLIGATIONS of the QUEEN OF BRITAIN by the president was not synonymous with UNIFICATION.
Certainly, the allegation that we were seceding Barotseland was made OUT OF CONTEXT; there is NO LAW that links Barotseland to Zambia. As for western, it is NONENTITY.
We therefore submit that it is not the role of the Courts to deal with HYPOTHETICAL MATTERS.
Our CONSCIENCE and CONVICTIONS are free and clear; we have not committed any offence against Zambia.
Ngulube was trying to deal with an offence implied, not offence committed. Ngulube admitted that his role was to infringe on peoples' Right to SELF-DETERMINATION.
Barotseland was administered by Zambia by political declaration and slogans, not by law.
To prove that we are not seceding, there is a brochure entitled "Barotseland is NOT seceding" tendered as exhibit, which contradicts the charge.
REF: TREASON FELONY CONTRARY TO SECTION 45 (b) OF THE PENAL CODE CHAPTER 87 OF THE LAWS OF ZAMBIA
OBSERVATION: The charge was prepared and framed in 2013 by Ngulube before we were arrested on 5th December, 2014.
The charge refers to unlawful means in the undertaking; according to the quoted section.
ARGUMENT: It is obvious that nothing unlawful took place or was done; Viz nothing damaged; no one threatened or intimidated or injured or insulted.
One wonders what bearing the assertions that, "My investigation led to the finding that the leader of Linyungandambo was the one who was sworn in as Administrator General of Barotseland" has to crime. Does it imply that Ngulube wanted someone else other than Mr. Mombotwa?
Nonetheless OATH is a religious act, where a person taking oath makes vow to God, that what he/she has promised shall be done, C. F Numbers 30 vs 2 and Zechariah 5 vs 3-4.
No discipline of law, civil law, criminal law, constitutional law, common or international law considers oath as criminal act. The fact that there was oath does not qualify Treason Felony.
RHETORIC QUESTION is which one is lawful means to liberty?
REALITY: The O.A.U Charter on human and people's rights section 20 (2) stipulates that "Dominated and oppressed people have the right to free themselves from the bond of domination by resorting to any means". Other international Charters state the same.
ASSERTION: "Whilst acting together with other unknown did prepare to have WESTERN PROVINCE secede from the rest of the sovereign Republic of Zambia".
OUR POSITION: Barotseland and Zambia were not one, if they were one, there would be no agreement between them, and Zambia could not sign an agreement with herself. There is no Barotseland in Zambia, just as there is no Zambia in Barotseland. Barotseland was a BRITISH PROTECTORATE and BUXTOR COMMISSION OF INQUIRY REPORT OF 1922 sheds more light on the boundary of Northern Rhodesia (Zambia) and Barotseland. The COMMON DENOMINATOR of Barotseland and Zambia was the Barotseland agreement 1964.
ARGUMENT: If secession is the issue, then no body could secede Western because it only exists in the context of belief. IN FACT ALL THE EXHIBITS TENDERED IN COURT REFER TO BAROTSELAND, THE TERRITORY THAT SIGNED AN AGREEMENT.
OBSERVATION: Charge refers to Western but documents and material evidence refers to Barotseland and section 45 (b) does not refer to secession. These are not compatible.
LEGALITY: "Breach of an Agreement by one party to the Agreement entitles the other party the right to invoke breach as the basis for terminating the Agreement". Unfortunately, this knowledge is lacking in Zambian Policy.
It is indisputable that Barotseland and Zambia are on the same page, both have agreed to the termination of the Agreement, therefore no Treason can arise from the broken Agreement. What is unlawful is to terminate the Agreement and then crave to enjoy the rights derived from the treaty that is nullified.
ASSERTION: Mombotwa did swear as Administrator General of Barotseland.
RESPONSE: We cannot answer charges pertaining to western because we do not know anything about it; moreover, self-determination, independence and liberty are not matters of crime. If these are crimes then Zambia committed the same crime when they wanted independence.
FORCED ASSIMILATION: "The laws of the Republic of Zambia shall not be inconsistent with the provisions of this agreement." The Barotseland Agreement of 1964 reads in part.
POINT OF VIEW: We do not know if the penal code quoted does not form part of the laws of Zambia. If penal code is part of the laws of Zambia, then it is in conflict with the law of treaties which stipulates that “A party to the treaty cannot apply her internal law as justification for her failure to honour the treaty".
IN CONCLUSION, therefore, it is the law of treaties that must take it's course for this matter. Independence, liberty, self -determination, are under the auspices of international law and human rights.
There is no law under the Sun that permits Zambia to coerce Barotseland. The document, material and others tendered in the Zambian court do not invalidate international law in any way.
It will be unfair to persecute us for understanding and knowledge that Barotseland has the right to accept the termination of the relation by Zambia between her ( Barotseland) and Zambia, and that she (Barotseland) has an inalienable right to exist and to self-rule.
Hence, justice does not allow Zambia to claim any right over Barotseland.
Prisoners of conscience.
1. Afumba Mombotwa (signed)
2. Likando Pelekelo (signed)
3. Sylvester Kalima (signed)
Cc. State Advocate
Cc. Defence Counsel
Report by Saleya Kwalombota and Lubasi Kalaluka
Continuation from [Part 01]...
MWEEMBA: There is before this court, specimen of your currency. What was the implication?
KALIMA: I really don’t understand how the Police operate bearing in mind that the specimen (Mupu) is not legal tender.
MWEEMBA: Was there anything unlawful in your activities?
KALIMA: No. There was nothing that was unlawful we did, because no guns were used, no violence was used, no deaths recorded and the Zambian Government operations were not disturbed in any way.
I am also perplexed that this court heard from Mr. Ngulube that he found guns, bows and arrows, but those items have not been brought to this court as evidence, bearing in mind the gravity of the allegations. I believe those items were substantial exhibits of how serious our charge is. This shows how unfounded and unprofessional the Police are.
MWEEMBA: We will take care of that one.
KALIMA’S CROSS EXAMINATION BY THE STATE ADVOCATE.
STATE ADVOCATE: How long have you been in Linyungandambo?
KALIMA: I have been a proud Linyungandambo member after about a year from its inception and I have been following the activities being a member of the movement.
STATE ADVOCATE: Where was the video shot?
KALIMA: The video was shot at my home, but I never helped in its production because there is a system in place and being a principled Nationality, we believe in law and order. Therefore my role was simply to witness.
STATE ADVOCATE: Witness, do you mean the Administrator General heads no Government?
KALIMA: The Government is there but not fully operational because, like my colleagues have indicated, we are still putting things in place even as we seek to peacefully drive illegally occupying Zambia out of our country through the ICJ , African Union and SADC avenues.
STATE ADVOCATE: A1 told the court that you are the Deputy Secretary of State for Agriculture. Do you know that?
KALIMA: Oh! I never knew I was appointed until now! Now that you have told me, I gladly accept it!
STATE ADVOCATE: Do you know anything about Studio Sakata?
KALIMA: I don’t know anything about Sakata and I don’t know the owner.
(State Advocate produced a photo of the three co-accused - A1, A2 and A3 - at Mr. Masiye’s - A4 - home in Sioma and gave it to A3.)
STATE ADVOCATE: Can you identify anyone in that photo?
KALIMA: I have seen myself in the photo but I cannot remember really what happened. But I know that it was the Police that led us there for the first time soon after our arrest.
STATE ADVOCATE: Witness, are you not lying before the court that actually that was where the swearing-in of the Administrator General took place?
KALIMA: We never had anything to do in Sioma, not until the Police led us there after we were arrested.
STATE ADVOCATE: If you say what you were doing was not overthrowing the powers of the State by preparing to secede Western Province from the rest of the Sovereign Republic of Zambia, what was the role of the Administrator General?
KALIMA: I know that the role of the Administrator General was to lead Barotseland in transition, according to the Barotseland Emancipation Act and Restoration Order 2012, and to oversee the Independence process.
STATE ADVOCATE: Witness, don’t you see that you were infringing on the operations of the State of Zambia?
KALIMA: If we had those powers to stop the Zambian Government operations, we would not have taken the step to sue it at the ICJ.
RT. HON. MASIYE WAS LAST.
Paul Masiye Masiyaleti said he was aged 52, a Sioma Secondary School teacher and resident at the same school in Sioma District.
MWEEMBA: Please tell us what you know without repeating what you said last time in connection to your first arrest: but concentrating on the issue at hand.
MASIYE: Please, may I say that last time I was not prepared for the trial within a trial! I was somehow not of a good mind.
MWEEMBA: Please be in the best of your mind so that you speak your mind.
(The court laughs)
MASIYE: It was on 22nd December, 2014 when I decided to attend a court session of my uncle, Mr. Afumba, in Mumbwa. I was inside the court room when suddenly the Zambia Police officers called me out of the courtroom. And as I came out, I saw a male Police Officer whom I later came to know as being Mr. Siafunda. He ordered me to jump into the Police vehicle and drove me to a place I later recognized to be a Police Station. I was forcibly thrown into a small room.
MWEEMBA: What else can you remember?
MASIYE: I saw about five (5) Police Officers and one of them told me to give a statement whose content I did not know.
MWEEMBA: Did they explain to you what was happening?
MASIYE: No. They did not tell me anything. However, they asked me 3 questions which highlighted me as to what they were after.
MWEEMBA: What were those questions?
1. Who was the caster in that swearing ceremony of your uncle, Mr. Afumba?
2. Was the swearing-in conducted at your home in Sioma?
3. Are you willing to be a State witness and be promoted by testifying in this matter?
MWEEMBA: By these questions, what did you realize?
MASIYE: I realized that the main point the Police wanted from me was to be a State witness by testifying against my uncle on matters I did not know.
MWEEMBA: What was your immediate reaction?
MASIYE: Because the Police wanted me to testify against my uncle about the swearing-in ceremony which I was not privy to, I decided not to say anything but remain silent.
MWEEMBA: Tell us, what happened when they saw you quiet?
MASIYE: I saw them consulting each other as to what charge they would slap on me. After that, I was formally arrested and co-charged with my uncle (A1) and his friends (A2) and (A3).
MWEEMBA: Now with regard to the period 12th March, 2012 to 30th August, 2013, what do you remember?
MASIYE: On 18th August, 2013 I was apprehended at Chibi Namakando’s home where I was receiving treatment.
MWEEMBA: What did they charge you with?
MASIYE: They charged me with the similar charges I am a charged with today; treason felony.
MWEEMBA: Thereafter, what happened?
MASIYE: I was kept for 12 days without food and on the 12th day, I was forced to give a statement. I was beaten, threatened and tortured as a criminal for the swearing-in ceremony I knew nothing about. The Police officers threatened to kill me if I would not give them the details concerning my uncle’s (Mr. Afumba) whereabouts.
MWEEMBA: What did you tell them?
MASIYE: I told them that I knew nothing about his whereabouts and that I was not there where the swearing-in was taking place. Neither did it take place at my home.
The officers discontinued my treatment at Chibi’s place so that they torture me for being a Barotzish.
Retroactive to the forcible recording of the statement, I remember being driven to a place I later recognized was Katima Mulilo. However, whenever we reached a station, they told me to lie on my stomach in order not to make people see me. I was driven to and from without any water or food.
MWEEMBA: I am interested mainly in what happened after all those Police brutalities
MASIYE: I was one of the 84 who were charged with treason, taken to Mwembeshi Maximum Security Prison and were later released on 29th November, 2013 after spending about 3 and half months in prison.
MWEEMBA: What do you think made the Police arrest you then?
MASIYE: The allegations were that the swearing-in of my uncle, Mr. Afumba, was done at my home and which I strongly deny. However, I am not saying the swearing-in did not take place but that it was not at my home!
MWEEMBA: There are materials purported to have been found in your possession. What were they?
MASIYE: At the time of my apprehension, I had nothing in my possession, apart from a pocket wallet which contained my 3 ATM Cards and nothing else.
The Police did not find me in Sioma but at Kasima area in Mongu where I was being treated of backache, and there has not been any one before this court who pointed at any of the items as having been found in my possession.
MWEEMBA: The Police said before this court that you told them you are the Deputy Secretary of State for Defence. What is your response?
MASIYE: I am a teacher by profession and I am very much absorbed into my duties. Therefore, I did not know anything concerning my appointment as Deputy Defence Secretary. However, I only heard such an appointment from the streets not from the appointing authority.
MWEEMBA: What was your immediate reaction after it was rumoured in the streets that you had been appointed?
MASIYE: My immediate reaction was to keep quiet and wait for confirmation from the Administrator General. And there is nothing wrong with being appointed.
MWEEMBA: Are you a member of Linyungandambo? And what role do you play?
MASIYE: I am a member of Linyungandambo and have been since 2013 and a strong supporter for that matter. However, I had no role in the production of the said video and the actual swearing-in as a matter of fact. I had no knowledge thereof.
MWEEMBA: It has been brought to the attention of this court that the materials were found in your house as it was the venue for the swearing-in. What is your response?
MASIYE: The Police just alleged that the swearing in was at my home and that some were also found there but I know nothing about them and because I did not leave them when I was leaving for Mongu.
MWEEMBA: Now concerning the charge, what again do you want the court to know?
MASIYE: It is now evident that there is literally and realistically nothing that connects me to this charge. The Police have just tortured me physically and psychologically just because I am a Barotzish! Therefore it is my humble prayer that the court releases me from these trumped up charges. It is not a crime to realize my true identity. I am a member of Linyungandambo and it is not a crime.
MASIYE’S CROSS EXAMINATION BY THE STATE ADVOCATE:
STATE ADVOCATE: Is it not true that the Police found you with the DVD of the swearing-in ceremony?
MASIYE: I had no DVD of the swearing-in at the time of my apprehension. I said I had a pocket wallet. If I had that DVD I would not have failed to tell you: I am not scared of speaking the truth but that justice must be done. You cannot just fabricate stories just because I am Barotzish.
STATE ADVOCATE: What about the security card with your name written on it?
MASIYE: I firstly saw a security card with my name written on it later after I was arrested in August 2013. I had nothing like that in my possession apart from the said wallet.
STATE ADVOCATE: Why would the Police say that? Do you have any idea?
MASIYE: I don’t know why Ngulube would allege that I had a DVD in my possession because I don’t know who sponsors him.
STATE ADVOCATE: Witness, is it not true that Ngulube was your friend prior to your initial arrest?
MASIYE: No. Ngulube is not my friend. I came to know that he knows my house soon after he led A1, A2 and A3 to my home in December, 2014.
STATE ADVOCATE: Who was at your home that time?
MASIYE: The Police found my family at home and took away my property; some of which is missing up-to-date. I believe they have just fabricated lies against me.
STATE ADVOCATE: But you watched the video, right?
MASIYE: I never had that video, and I only came to watch it on 19th August, 2013 at the Police Station in Mongu when it was being played by the Police officers themselves.
(A photo was presented to A4 showing his house in Sioma and his wife, and A1, A2 and A3 were also in the picture).
STATE ADVOCATE: Do you recognize anyone in that picture?
MASIYE: Yes. I can see my wife - Nalucha Mulope, my uncle - Mr. Afumba together with his friends; Mr. Likando and Mr. Kalima in the room.
STATE ADVOCATE: Whose house is that and what were they doing?
MASIYE: That is my house. As for what they were doing, ask the Police who took them there for the first time.
STATE ADVOCATE: What about in the picture?
MASIYE: I can see my uncle stretching hands in one of my rooms. I know the Police forcibly took them there to photograph them in an effort to cement or augment their lies.
STATE ADVOCATE: Did you know Mr. Likando and Mr. Kalima prior to the swearing-in?
MASIYE: No. I came to know them when I came to attend the court session in Mumbwa, where I was arrested on 22nd December, 2014.
STATE ADVOCATE: Did you personally know about their presence at your home?
MASIYE: No. They never went to my home until the Police took them there after they were arrested. I don’t know anything concerning their presence at my home.
MASIYE: Judge Sichinga asked Mweemba if there is anything of importance that his client would like to say.
MWEEMBA: Maybe just clear the court on the Defence Code of the Royal armed Forces of Barotseland that was produced as evidence before this court and said to have been found in your house.
MASIYE: I do not know anything concerning the exhibits in question because I was not found with them. Some of the materials, according to the State witnesses were found on the streets with those who were peacefully celebrating the inauguration of the Administrator General.
The defence was closed somewhat abruptly, after which the defence was instructed to merely issue statements and only refer to the documents and videos, without being given the opportunity to actually showcase them. They were advised to merely tender and submit all their video and documentary evidence in their final submissions on 18th December, 2015.
The session was not that easy as the Judge almost blocked the Barotseland Government leaders from speaking fluently.
Meanwhile, the court adjourned to 18th December, 2015 for defence submission and later 8th January, 2016 for the State Prosecutors’ submission.
Therefore, the Judge indicated that judgment would be given some time in March 2016 during the next Criminal Court Session.
End of report.
See also the consolidated full COURT UPDATE, including some VERBATIM, for Thursday 26th November 2015 Barotse Treason Trial Update [PART 01 and PART 02] here: http://barotselandpost.com/images/important_barotse_documents/26th_november_2015_court_updates_report.pdf