By Agness Changala
The Lusaka High Court has granted the State an application to allow the espionage case involving Lusaka businessman Shadreck Kasanda and four others to be held in camera.
In this case, Kasanda who is jointly charged with Mahogany Airlines chief executive officer Jim Belemu, State House security officer and two others, is also charged with fraudulent dealings with metals and minerals, charges they have all denied committing.
Their cases are in connection with the Gold scandal that occurred at Kenneth Kaunda International Airport (KKIA) in August this year.
Last week, state advocate Nkumbiza Mumba applied that proceedings in a case be held in camera because the case had sensitive information that was not fit for public consumption among other reasons.
However, the defence team led by former Solicitor General Abraham Mwansa and Makebi Zulu argued that contrary to Mumba’s submission, it is the accused who would suffer prejudice if trial is conducted in camera.
The defence argued that the case was already in the public domain and the public is interested to know and follow proceedings.
When the matter came up for ruling before a panel of three judges, Charles Zulu, Ruth Chibbabbuka and Situmbeko Chocho, they ruled that based on the information given to them by the State, that continued hearing in open court will be prejudicial to the Republic, the same is sufficient to grant the application.
“We accordingly do so. The proceedings in this case shall now be held in camera. For avoidance of doubt, only accused persons, their lawyers and their witnesses, the prosecution lawyers and their witnesses. In relation to court staff, only the court reporters and marshals will be allowed in the proceedings,” said judge Chibbabbuka who read the ruling on behalf of others.
She said the offense of espionage is typically one that falls in the category of offenses against the Republic of Zambia.
Judge Chibbabbuka said considering the gravity of offenses in this category, it is unsurprising as to why the lawmakers didn’t dispute that the offenses of this nature be tried in camera.
“This is based on the understanding that unsatisfactory disclosure of certain information to the public can be prejudicial to the Republic of Zambia,” judge Chibbabbuka said.
She observed that once the state assesses that the evidence that is to be presented before court may be prejudicial, they are entitled to make this application which the court is obliged to grant.
The judge said there is no discretion on the part of the court to hold otherwise no matter how the arguments of the defense may be.
She said the obligation of the court is derived from the word shall which is a mandatory position adding that the basis for this is to ensure that the public are protected from any national security risks.
The judge said her team agreed with the states’ position that they shouldn’t prejudice any evidence when making this type of application.
“This is because the evidence that it’s to be kept out of the public domain will inevitably be placed in the public domain by the disclosure of the same in the said application which is not the intention of the legislature in this provision,” judge Chibbabbuka said.
She said the state does not require to finish the evidence of making such an application.
Judge Chibbabbuka said the application raised an important aspect of the need to balance the right to a fair hearing of the accused person and the need to defend the security of the country and its people by not allowing certain evidence or statements to be mentioned in court.
