The Lusaka High Court has dismissed the State’s attempt to block the constitutional bail application of opposition leaders Mr Brian Mundubile, Mr Makebi Zulu and 16 others. It ruled that the matter is properly before the court and must now be heard on its merits. The decision…

The Lusaka High Court has dismissed the State’s attempt to block the constitutional bail application of opposition leaders Mr Brian Mundubile, Mr Makebi Zulu and 16 others. It ruled that the matter is properly before the court and must now be heard on its merits.

The decision removes the procedural wall that has stood in front of the 18 detainees since they filed for bail. It opens the way for the hearing to begin on Wednesday.

A panel of three judges, Judge Derrick Mulenga, Judge Davies Chibwili and Judge Ireen Wishimanga, delivered the ruling. The panel threw out a preliminary objection in which the State challenged the manner in which the application had been filed.

Mr Mundubile was the National Reconciliation Party for Unity and Prosperity (NRPUP) presidential candidate in the August election and finished second. Mr Zulu was his running mate. Lusaka business executive Mr Harry Findlay is among their co-applicants.

The group has petitioned the High Court alleging gross violations of their constitutional rights and freedoms. Through the bail application, they are asking to be released while that petition is determined, either unconditionally or on such terms as the court considers appropriate.

The 18 face charges that include treason, sedition and terrorism-related offences, laid after their arrest in the aftermath of the polls. They are being held at Mukobeko Maximum Correctional Facility in Kabwe and have been brought from there to the court in Lusaka.

The failed objection came from the highest legal office in Government. Attorney General Mulilo Kabesha told the court that the bail application was improperly before it because it had been filed as part of a civil constitutional petition rather than through criminal proceedings.

Acting Chief State Advocate Chibesa Mulonda took the same line. He submitted that constitutional bail could not be sought under a constitutional petition and urged the court to dismiss the application for want of jurisdiction.

The defence resisted. Lawyers for Mr Mundubile and the other applicants, among them State Counsel Bonaventure Mutale, Chifumu Banda and Sakwiba Sikota, opposed the objection and maintained that the matter was competently before the court.

The judges sided with the applicants. They held that the court had jurisdiction to hear the bail application because it arose from a constitutional petition that was already properly before it.

The panel went further. It ruled that hearing the application within the petition would prevent unnecessary duplication of proceedings and promote the efficient administration of justice. The application therefore stays within the petition rather than being sent to the criminal courts, as the State had sought.

The ruling settles the jurisdiction question that has hung over the application since it was filed on 14 October. The process has moved slowly. At one sitting, the hearing failed to proceed after the State told the court it was not ready.

At another, the State and the defence agreed by consent to join Director of Public Prosecutions Gilbert Phiri to the proceedings, after Mr Kabesha insisted that the application was criminal in nature. Mr Zulu, himself a lawyer, has also told the court that he will represent himself in the bail proceedings.

With jurisdiction settled, the hearing now moves to the questions that matter most to the detainees. The State has already set out its opposition to bail on the merits. It contends that the applicants pose a flight risk and could interfere with prosecution witnesses because of their political influence.

The State also maintains that the time the applicants have spent in detention does not amount to the unreasonable or inordinate delay needed to justify constitutional bail. Those claims will now be tested before the same three judges who dismissed its objection.

Ahead of the hearing, Mr Mundubile and Mr Zulu appealed for openness, fairness and justice in the proceedings.

The panel will now hear both sides on whether the 18 should walk free while their petition is decided. The applicants want release, unconditional or on terms. The State wants them kept in custody. That contest opens on Wednesday.