Anyone hoping for a swift conclusion of the treason case against the folks arrested recently should be encouraged to take a reality check.
Judging by the past record of such and similar cases, I would be quite surprised if the case were to be concluded within the next couple of years. This may come as a surprise to those who think that the report of the Commission of Inquiry is so clear about the events of April 5, 6 and 7 that we should just move swiftly to punish those to whom the accusing finger of the public is pointed.
It may also come as a disappointment for those who may hope to reap political capital out of the case. Such hopes exist on both sides of the political divide. On one side are those who hope that the politicians among the accused will be convicted before the 2014 elections so that they can be disqualified from contesting in them. On the other side are those who are hoping for an outright acquittal before the elections so that the acquittal can be used as proof of political persecution and thus buttress their electoral campaign.
Both sides should lower expectations and brace themselves for the reality. This case may still be winding its way through the labyrinthine maze of our judicial system by the time we go to the polls in 2014. This will be the result of the procedural requirements of the judicial process, the number of accused in the case and the existing backlog of similar cases.
Perhaps the question of procedural requirements needs particular emphasis, especially regarding the relationship between the report of the Commission of Inquiry and the judicial process. It is important to note that in the treason case, the High Court trying will not simply adopt the findings of fact made by the Commission.
The court will have to collect its own evidence based on witness testimonies submitted to the court. In fact, witnesses giving evidence for the state and the defence in court will be subjected to cross-examination. Judging by the legal talent gathering on both sides, this will be something to watch. If each of the accused decides to hire his or her own lawyer and the State uses at least three lawyers, we should have a minimum of 13 lawyers doing cross-examination. Depending on the number of witnesses that each side will call, how many hours of cross-examination is that? And then there are adjournments, court vacations and other interruptions.
Do you see my point now? Anticipating a swift conclusion of the matter is little more than wishful thinking.
Since the 1994 Constitution came into force, justice is administered differently. Times have changed since 1976 when former Cabinet Minister, Albert Muwalo and head of Police Special Branch, Focus Gwede, were convicted of treason on the basis of the dodgy logic of “there is no smoke without fire.” We are certainly no longer in the 1980s when Orton and Vera Chirwa were swiftly convicted of treason and sentenced to death in a traditional court trial which flouted almost all aspects of fair trial as we know it.
We live in a different world in which fair trial is guaranteed by the Constitution. In fact, probably the longest single section of the Constitution is section 42 which deals with the rights of people who are arrested and accused of criminal offences. Ensuring that all the procedural safeguards of fair trial, including affording the accused the right to cross-examine their accusers, are upheld costs time. That is the system we chose in 1994.
While we wait for the case to make its way through the judicial maze, we can only reflect on a number of related issues. The first is the balance between freedom of expression and the right to fair trial. Some concerns have been raised about the adverse impact on freedom of expression of the bail condition that effectively bars the accused from discussing their case in public speeches. It is important to note that all of us are somehow subject to a similar prohibition.
Section 113 of the Penal Code makes it a criminal offence for any person to make any public pronouncements which have the potential to influence the court to be in favour of or against any person being tried before the court. So, it is not only the accused politicians who are gagged but, in effect, all of us. We need to start lobbying for the limitation of such laws because they impede open discussion of matters of public interest.
The other issue that we could be discussing in the meantime is conditions of imprisonment. Every time a VIP gets placed into police custody, the crowded conditions, mosquitoes and other vagaries of confinement get a lot of press. When the media spotlight disappears after celebrity prisoners are gone, thousands continue to silently endure these conditions, sometimes for years. Is it not time that all who have endured these conditions, regardless of their political affiliation, got together in some form of penal reform association to lobby for improvement of conditions in prisons and police cells?