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Lusaka businessman, Shadreck Kasanda, and 10 other suspects charged with espionage will remain in jail after the Magistrate Court ruled that the Director of Public Prosecutions (DPP) has the power to issue instructions denying the accused bail.
This follows a ruling by Chief Resident Magistrate, Davies Chibwili, who said the DPP, Gilbert Phiri, was vested with the powers under Section 123(4) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia to issue a certificate of denial of bail to the suspects.
This is in a matter where six Zambians and five Egyptians are facing a charge of Espionage contrary to section 3 (a) of The State Security Act Cap 111 of the Laws of Zambia.
The six Zambians are Lusaka businessman Shadrick Kasanda, Mahogany Air Chief Executive Officer Jim Belemu, commercial pilot Patrick Kawanu, accountant Oswald Diangamo ,Francis Mateyo and senior police officer Robson Moonga.
The Egyptians include director Walid Refaat Fathmi Botors, factory worker Mounir Shaker Gerges Awad, retired Colonel Mohamed Abdelhak Mohamed Gooda, security manager Yasser Mokhtar Abdelghafor and businessman Micheal Adel Micheal Batros.
Facts are that the 11 on August 13, 2023, jointly and whilst acting together with other persons unknown did enter a protected area, namely Kenneth Kaunda International Airport (KKIA) for purposes that are prejudicial to the safety or interest of the Republic of Zambia.
Ruling on the application by the defence lawyers who include former Solicitor General Abraham Mwansa, SC, Makebi Zulu and Martha Mushipe that the certificate be vacated, the court held that the DPP acted within the constitution.
“I now come to the issue of whether the issuance of the certificate by the DPP denying the accused bail before issuing committal certificate was improper, irregular or jump the gun.
“Proceedings in this court started with filing of cause list and appearance before me. No persons charged with an offence under the State Security Act shall be admitted to bail if the DPP certifies. The DPP denying the accused persons bail was within his powers to do so and there is no irregularities. The application to withdraw the DPP’s certificate is accordingly dismissed,” he said.
However, counsel Mushipe applied that the State give reasons how granting of bail to the suspects would be prejudicial.
“In the case of Micheal Sata V the People 2005, the court went at length with regard to this provision and stated that if the accused person who in this case was Sata challenged his arrest in a speech and charged with espionage, the DPP issues a certificate on political ground not to release Micheal Sata.
“The High Court Judge Mable Mwanza was of the view that unless one is charged under the security act, bail should be granted as a matter of discretion and that the certificate by the DPP whether to grant bail or not must be based on factual basis demonstrating how the accused if released on bail may jeopardise or prejudice the state of the Republic or interest of the Republic” she submitted
She further argued: “the court went further to state that it should not be based on speculation or political considerations. The High Court went to grant Sata bail and there the lawyers argued that the purposed certificate by the DPP did not pass the test of section 124 of the CPC.
“The point I’m driving is that they cannot merely block the application for bail without giving reasons as to why or how it is likely to prejudice the safety or the interest of the republic. In this regard, and at the last sitting, I did allude to the fact that the state had jumped the gun because there was no formal bail application.”
The matter was adjourned to Wednesday.
Last week DEC seized an Egyptian private aircraft loaded with about US$5.7 million cash, 605 golden coins in addition to five guns with 126 bullets.
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