DESPITE the court declaring James Bwalya fit to dance to the music of his alleged crimes which include the abduction, rape and trafficking of 13 women among other grave charges, his lawyer Osborne Ngoma insists the 22 year old lad is not healthy enough to sit through court sessions and listen to the State present evidence against him and his partner in crime, Matthews Sikaonga.
After several days of limping in and out of the Lusaka High Court and giving some sort of credence to testimonies of medical experts that he was unfit to stand trial, Judge Charles Kafunda ruled yesterday that Bwalya was healthy enough for prosecution.
Judge Kafunda observed that the psychiatrist who declared Bwalya unfit to undergo trial had the right to form his own expert opinion, but it is the duty of the Court to scrutinize the findings and form its own conclusions.
But the ‘abductor’s’ lawyer Osborne Ngoma said his client will petition the High Court’s decision to brush off the medical report indicating that he’s unfit to stand trial, in the Constitutional Court.
In this matter Bwalya and his co-accused Matthews Sikaonga are charged with 54 counts of aggravated robbery, assault occasioning actual bodily harm, prohibition of trafficking in humans for purposes of sexual exploitation, rape and abduction.
At the last session Dr Patrick Msoni a psychiatrist told the Court that according to the mental assessment he conducted on Bwalya it was established that the latter has an anti-social personality disorder and is not fit to stand trial.
State advocate Bob Mwewa had disputed the findings of the psychiatrist and requested the Court to order that Bwalya stand trial because he has no mental illness.
Ngoma argued that the findings that Bwalya has a conduct disorder is an expert opinion which was made by a qualified psychiatrist that his client is not fit to stand trial.
In response Mwewa suggested that the Court makes its own determination as opposed to merely adopting the psychiatric report or in the alternative seek a second opinion.
Ruling on the matter judge Kafunda said Section 160 of the Criminal Procedure Code (COC) is clear that the instances on which Bwalya’s ability to make a proper defense would be questioned is when he is of unsound mind or has a disability which would render him incapable of making a proper defense.
“The opinion of an expert such as Dr Msoni is his own opinion only, as it is the duty of the Court to come to its own conclusion based on the findings of the expert witness,” he emphasised.
“The question as to the accused’s fitness to take plea and to be tried is one that is determined by the Court after taking into consideration the evidence on the Court’s record.”
He directed that the symptoms outlined in the medical report which were exhibited by Bwalya such as deceitfulness, impulsivity and lack of remorse do not render him mentally unfit to stand trial as pictured under Section 160 of the Criminal Procedure Code (CPC).
Judge Kagunda said notwithstanding the anti-social personality disorder which Bwalya was diagnosed with, the latter does not have hallucinations and delusions as he is well oriented and his memory for recent and previous events was not impaired.
“Bwalya is in a reasonable position to appreciate the charges against him and the proceedings in which he is arraigned. For the foregoing I that Bwalya is mentally fit to Stand trial,”judge Kafunda ordered.
He further directed that Bwalya and his co-accused will take plea after he is declared physically for by a physician upon the expiration of his two-weeks bedrest.
Judge Kafunda ordered that the accused’s review should be conducted between May 3 and 5 and the report should be presented before Court by a medical personnel on May 8.
“If declared fit both accused person’s will take plea. Thereafter, the court will proceed into trial, if the plea will be not guilty. Should there be need by the parties to seek any other new direction, the such arrangements should be made between now and May 8, 2023,” ordered judge Kafunda.
By Mwaka Ndawa
Kalemba April 20, 2023.