This was in the case where the three had appealed against the high court verdict of ten years with hard labour for the crime of treason felony for their role in the implementation of the 2012 Barotse National Council (BNC) which resolved to revert Barotseland to its pre-1964 status following Zambia’s repeated refusal to honour the 1964 Barotseland Agreement that brought the former British Protectorate of Barotseland and the British colony of Northern Rhodesia together to form the Republic of Zambia.
The Barotse National Council was regularly sanctioned by the Litunga, King of Barotseland, under the auspices of the Barotse Royal Establishment (BRE) and the Government of the Republic of Zambia (GRZ) in the presence of the Church and the international community to chart the way forward and resolve all outstanding matters surrounding the defunct Barotseland Agreement of 1964.
And the appellants’ defence attorney Victor Kachaka is sad that he could not overturn the High Court verdict so that his clients, Afumba Mombotwa, Likando Pelekelo and Inambao Sylvester Kalima could go home to their families as free men!
“There is nothing more we could do since the honourable Supreme Court Judges have decided to throw out all our grounds of appeal in this case!” lamented Counsel Kachaka.
In his grounds of appeal and heads of arguments, the defence counsel had contended that his clients could not have possibly usurped any executive powers of the state or indeed any Zambian government official by swearing an oath as Administrator General of Barotseland because there existed no such title or office in the Zambian Constitution, except as it relates to administration of estates of deceased persons.
“The learned trial judge (High Court Judge) erred and misdirected himself both in law and fact when he held that the 1st Appellant took the position of a government officer and declared himself the Administrator General of a part of the Republic of Zambia when there was no evidence identifying such an office of Administrator-General allegedly taken in the Zambian Government,” read part of the defence lawyer’s grounds of appeal to the Supreme Court.
In another argument, Defense Counsel Victor Kachaka had argued that the learned High Court trial judge erred in law and fact by failing to take into account clear evidence from Appellant 1, Appellant 2, and prosecution witnesses 2 and 3 showing that Barotseland and Western Province of the Republic of Zambia are not one and the same, leading to a misdirection of fact and law.
However, in response to the Defence's arguments, the state prosecutor had maintained and prayed that the Supreme Court should uphold the ruling by the trial Judge, Hon. Dominic Yeta Sichinga, SC, as ruled on the 9th of March, 2016 because the trial record shows that the Appellants were charged with the offence of Treason Felony Contrary to Section 45 (b) of the Laws of Zambia.
"My lords and ladies, according to the Zambian Constitution, the Republic of Zambia is a unitary state which currently has 10 provinces and a Republican president ushered into office via elections. The Republic of Zambia has inter alia a currency, an army, a national anthem, a Constitution and cabinet in place." read part of the State's nine-page response.
In qualifying arguments, the state responded further that,
"...evidence established that the Appellants were party to a group of people who had engaged themselves in an unlawful enterprise of subverting or undermining the authority of the Zambian state. It was not lawful for the Appellants to prepare a constitution, bank notes, an anthem, a provisional cabinet and army for the Barotseland, which is a part of the unitary state of the Republic of Zambia. It was also unlawful for the 1st Appellant to take oath as the administrator general for the Barotseland when the Zambian republican president is mandated by the Constitution to administer that territory the Appellants termed the Kingdom of Barotseland."
In counter-arguments, the Defense argued that the state could not prove beyond any reasonable doubts that Barotseland and the Western Province of Zambia were, in fact, one and the same territory and that the office of Administrator General was indeed a constitutional or government office in the Republic of Zambia; or that his clients are the ones who actually prepared any of the items listed by the state as they could well have been prepared by those others 'unknown' as testified by his clients during the Hich Court trial!
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 total, the defence had written put up to six grounds of appeal and nine-page heads of arguments which the Supreme Court threw out entirely!
The appellants have been in deplorable Zambian imprisonment, with hard labour, since their day of arrest and incarceration on 5th December 2014 without any court bail or bond as the case of treason is a non-bailable capital crime under Zambian laws.
Below are the rest of the grounds of appeal filed by the defence attorney on Wednesday, the 5th of September, 2018 in the Supreme Court of Zambia sitting in Ndola, which the Supreme Court threw out entirely.
The heads of arguments by both the Defence and the State, including the entire Supreme Court judgment and ruling will be consequently published!
S.C.Z APPEAL NO. 152/2017, 153/2017, 154/2017
IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA
AFUMBA MOMBOTWA 1ST APPELLANT
PELEKELO LIKANDO 2ND APPELLANT
SYLVESTER KALIMA INAMBAO 3RD APPELLANT
THE PEOPLE RESPONDENT
THE APPELLANTS’’ GROUNDS OF APPEAL
The learned trial judge misdirected himself both in law and fact when he erroneously found the appellants with a case to answer and placed them on defence when there was no evidence to support the charge against them at the close of the prosecution's case.
The learned trial judge erred and misdirected himself both in law when he convicted the appellants for the offence of Treason Felony in absence of proof beyond reasonable doubts that they had prepared or endeavoured to carry out by unlawful means an enterprise which usurps the executive powers of the state in any matter of both a public and a general nature.
The learned trial judge erred and misdirected himself both in law and fact when he convicted the appellants for the subject offence when in fact the alleged preparatory activities were not undertaken by the appellants but by other unknown people.
The learned trial judge erred and misdirected himself both in law and fact when he held that the 1st Appellant took the position of a government officer and declared himself the Administrator General of a part of the Republic of Zambia when there was no evidence identifying such an office of Administrator -General allegedly taken in the Zambian Government.
The learned trial judge erred in law and fact by failing to take into account clear evidence from Appellant 1, Appellant 2, and prosecution witnesses 2 and 3 showing that Barotseland and Western province of the Republic of Zambia are not one and the same leading to a misdirection of fact and law.
The learned trial judge misdirected himself in law and fact by making a finding that A1, A2 and A3 usurped the executive power of the state when there was no evidence to support usurpation.