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 2009-09-02 05:59 pm Back to NEWS
Kafunda orders the arrest of M'membe

LUSAKA chief resident magistrate Charles Kafunda yesterday issued a bench warrant for arrest against Post editor-in-chief Fred M'membe. And defence lawyers in the case where U.S-based Zambian Professor of law, Muna Ndulo, and the Post editor-in-chief have been cited for contempt argued that the matter was improperly taken before court.

This follows a complaint by the prosecutors in the matter in which Post news editor Chansa Kabwela is facing one count of circulating obscene matters or things contrary to the law that an article authored by Prof Ndulo and published in the Post newspaper edition of August 27, 2009 was contemptuous.

Delivering ruling in the matter, magistrate Kafunda said the summons to The Post editor-in-chief where properly issued.

He said the defence's submission that the editor-in-chief was in fact on study leave confirms that M'membe was aware of the court proceedings.

"The said Fred M'membe is therefore fully aware that he has been summoned," he said.

Magistrate Kafunda said the court was not satisfied with the reasons given by the defence counsel because M'membe was aware that he was summoned.

"I will therefore issue a bench warrant for his arrest," he said.

Magistrate Kafunda said the bench warrant against M'membe was returnable on September 7, 2009.

But defence lawyer George Chisanga argued that the name Fred M'membe was not mentioned in the summons.

"We have been served with two summons, they don't have the names. Unless the state by means of ingenuity filed separate summons," he said.

And Lusaka Division Prosecutions Officer Frank Mumbuna said Chisanga's attempt must not be accepted before the court.

"This is a court of procedures and records. By this I mean where the court has made a ruling and subsequently an order passed such as a bench warrant to draw the court into defences and excuses will be closing one's eyes to realities," Mumbuna said. "Unless and until my learned brother furnishes this court with the relevant provisions of the law as to his attempt to seek justification would be making such attempts without foundation.

"The tendering of the summons before this court in an attempt to justify the none availability of Mr Fred M'membe would be a strong violation of procedures before this court for the court has already ruled."

But Chisanga argued that the defence still strongly contends that there has been a serious misapprehension of fact.

"The person responding to the name Fred M'membe has not been summoned to attend before this court. Whether as an alleged contemnor or indeed as a witness to the alleged contempt," Chisanga said. "The summons to which we have responded to are very clear in their wording. They direct the attendance before you of the editor-in-chief without mentioning a particular name and speaking for the defence we were not served with the summons directing the attendance of the individual called Fred M'membe."

He argued that there was no proof that the separate summons was issued or indeed the person answering to the name Fred M'membe was served with the summons.

"It must be proved to this court by the state. Firstly, that summons to a particular witness was issued, secondly that, that particular witness was served and thirdly that, that particular witness or contemnor deliberately stayed away from the court proceedings," Chisanga said. "This court did direct the attendance of the editor-in-chief and the author of the article. We have informed this court that the acting editor-in-chief is before you."

Chisanga said he would like to argue that the court has been lead by the state to a serious misapprehension that summons to Fred M'membe were issued.

"Now that we have corrected that apprehension it is in the best interest of justice that since there is no proof before this court of a person intending to be benched having been served," Chisanga said. "This bench warrant is without legal basis and it must be vacated. This is a court of justice."

And Mumbuna said the action taken by the court to cite M'membe was appropriate.

"If by any means the title of Mr Fred M'membe was not captured for the summons it was captured by the term entire editorial staff. It is surprising... that if it was the feeling of the defence that Fred M'membe was not covered by these summons I see no reason why the defence offered an excuse," Mumbuna said.

But Chisanga objected that the defence did not offer an excuse.

Mumbuna however, continued that: "We maintain without apologies that this court has already given its position by way of an order and what remains is the execution of the order nothing else."

Another defence counsel, Remmy Mainza argued that it was a basic principle of law in criminal proceedings that any part of criminal proceedings was at liberty to make an application relating to any order or ruling made by a court before it rises.

"The application made by my learned colleague before this court had arisen is well founded. It has been submitted by the state that the bench warrant has been correctly issued. We are not challenging the authority of the court in issuing bench warrants before any such bench warrant can be issued. It is a requirement of the law under Section 98 that the person alleging to have effected service of summons is obliged to provide evidence of such on oath in the witness box or by affidavit," Mainza said. "The court has not been informed as to who was tasked to effect summons on Mr M'membe. In the absence of evidence of service we submit that it will be improper for this court to issue a bench warrant in the manner it was done. It is for this reason that we are asking this court in the interest of justice to set aside the bench warrant. Unless the state is in a position to avail the court with an affidavit of summons."

But magistrate Kafunda ruled that the fact that the name Fred M'membe has arisen in today's proceedings does not mean that M'membe was not aware.

"There is only one editor-in-chief summoned who is aware of the proceedings by having been duly summoned," he said.

Magistrate Kafunda said he maintains the reasoning given in the ruling that the bench warrant be executed. 

And Post acting editor-in-chief Sam Mujuda who appeared along side managing editor Amos Malupenga and production editor Afeti Yulu took responsibility of what was published. While Yulu said he was on a short leave and Malupenga denied playing any role in the publication of the said article.

Later, magistrate Kafunda cited Mujuda for contempt since he accepted responsibility of the article in question.

Earlier, when the matter came up before magistrate Kafunda, Mumbuna said they were calling the case of the People versus the editor-in-chief of the Post newspaper and others.

But magistrate Kafunda told Mumbuna, who was seated with his deputy Anderson Simbuliani and a Drug Enforcement Commission (DEC) prosecutor Keith Mweemba, that there was no such case before the court.

Mumbuna stood up again and said they were calling the case of the People versus Chansa Kabwela.

"This is a matter before this court for contempt proceedings following the order that was given against the editor-in-chief for the Post newspaper and the others," Mumbuna said.

At that moment, Post deputy editor-in-chief Sam Mujuda, managing editor Amos Malupenga, news editor Chansa Kabwela and production editor Afeti Yulu took the stand before Kafunda.

Lawyer, Vincent Malambo, who informed the court that he was the one representing University of Cornell's Prof Ndulo, said he had noticed that the summons issued by the court had excluded his client.

"An impression was created, I think in the public media that Prof Ndulo was also required to attend," Malambo said.

Kafunda told Malambo that he was just noting down the position relating to Prof Ndulo's position.

Other defence lawyers, Remmy Mainza and George Chisanga, said they were representing the persons that had been summoned by the court to appear that morning.

Kafunda then said he had noted that Prof Ndulo was outside the jurisdiction of the court but that everything would be done to have him summoned.

He said the clerk of court, criminal, a Mr. Kasonde did inform him that summonses were effected on the Post editor-in-chief, as per directive, which also included the attendance of the entire editorial staff of the newspaper.

Kafunda said the summoning of the editorial staff was aimed at determining whether these were connected to the authorization of the article complained of.

Kafunda then asked Mujuda, Malupenga and Yulu to confirm their positions at the newspaper and explain such connections to the article in question.

But defence lawyer Mainza raised preliminary issues on need for the court to prove that the persons before it were properly summoned.

Mainza said according to the summonses the persons were supposed to be witnesses in the matter.

"Going by the ruling that was given on Monday last week, it is clear that the three persons are not appearing as witnesses, as suggested by the summonses," Mainza said. "We therefore submit the said persons have not been properly summoned, as they are certainly not witnesses."

Mainza said it was the defence's contention that the summonses were therefore defective.

"We urge, your worship, that proper summonses be issued in line with the ruling that was given by this honourable court," he said.

Mainza also raised a second issue relating the provisions of Section 90 of the Criminal Procedure Code (CPC) chapter 88 of the laws of Zambia.

"The learned DPO, Mr. Mumbuna, did lodge a complaint, as the record would show, that an offence had been committed pursuant to which this honourable court directed that the editor-in-chief of the Post together with the editors be cited for contempt," he said.

But magistrate Kafunda asked Mainza if that was said during the ruling.

"The ruling of the court was to the effect that the article in question was contemptuous and that the editor-in-chief and Prof Muna Ndulo do appear before this honourable court," Mainza said after consulting with his colleagues. "Our contention is that Section 91 (c) of the Criminal Procedure Code appear not to have been complied by this honourable court in that the said paragraph c of Section 90 provides that a formal charge containing a statement of offence with which the accused is charged ought to be drawn and until such charge has been drawn up and signed no summon or warrant shall issue and no further stay shall be taken in the proceedings."

Mainza said the issuance of the summonses in the absence of such a charge was premature.

Malambo complimented Mainza's submissions by saying that it would not be necessary to physically procure the attendance following the court's finding that the article he authored was contemptuous.

Malambo said should it become absolutely necessary that he traveled to Zambia, he would inform Prof Ndulo.

"I am more concerned about the fundamentals," Malambo submitted. "The fundamental issue is that this species of contempt...is not one where the court would proceed as it has. This is not a contempt committed in the face of the court where the court can use summary procedure. This is contempt relating to an article."

He said the court was entitled to deal with that sort of contempt but subject to procedure.

"It is trite law that a contempt of this nature has to be proved to the same standard of proof applicable in criminal matters before the court makes a finding that the article is contemptuous. Formal evidence has to be laid. That evidence is much more than just a complaint from the bar by a public prosecutor. There has to be proof beyond all reasonable doubt.

Malambo said the necessity of a formal charge in such a species of contempt was to avoid the appearance of a judge being a prosecutor and the judge at the same time.

"I am quoting from the Supreme Court judgment. This really is because this is not contempt in the face of the court," Malambo told magistrate Kafunda. "Find also some useful guidelines in the case of Attorney General versus Independent Television News Limited and others, in the 1995 Volume 2 All England Report at page 369."

Malambo further referred the court to a case of Attorney General versus Guardian Newspaper and others contained in Volume 3 of the All England Report at page 38.

"These case deal with the procedure," he said.

Malambo said he would be grateful if the court addressed itself to the issues of procedure as raised by the defence.

Chisanga said as by that morning no summon had been issued to the editor-in-chief of the Post by the state.

"We submit that this is highly irregular and a decision must be made to that effect by this honourable court," he said. "The learned State Counsel has ably tabulated the procedures that the court ought to follow in dealing with matters of contempt where the alleged contempt is committed not in the face of the court."

Chisanga cited the cases of Elis Nyati and another versus the People contained in the 1988-89 Zambia Law Edition on page 78 and the case Balojh versus the Crown contained in 1972 two All England Report on page 383, as his authorities buttressing his submissions.

He said these authorities seem to underscore that when the alleged contempt is not committed in the face of the court, it would not be proper for the court to deal with it in any other manner other than within the provisions of Section 116 of the CPC.

"The defence will submit, your honour, that the contempt proceedings before you are improperly before the court and they must be quashed," he said.

Chisanga said the state was not in anyway prohibited from commencing the proceedings, as long it was subject to complying with the mandatory provisions of both the penal and criminal procedure code.

However, Mumbuna said there was no procedure that the state had abrogated in the matter.

He said the court had discretion to get into the contempt matter and then make recommendations to the Director of Public Prosecutions for determination.

"I do not see any procedures that have been abrogated before the court," Mumbuna said. "By procedure, your honour, the accused persons are supposed to show cause then later the court makes recommendations, after which all the concerns made by my learned brothers could then be addressed."

Mumbuna said as to the summonses that had been issued against the editor-in-chief of the Post, he would have expected that he should have been before the court.

"Whilst there has been an omission on the summonses the best thing we all expected, including the court, your worship, is to see that the persons summoned are before this court. Then these concerns would be addressed," he said. "I may appear to be thinking loudly...that despite the summonses that are said to have been served on the editor-in-chief of the Post, the editor-in-chief of the Post is not even before this court. By editor-in-chief, I am referring to Mr. Fred M'membe. If by any reason, Mr. Fred M'membe is not before the court, because the summonses carry omissions, to me, your worship, and to the state, we interpret that, your honour, as underestimating the authority and integrity of this court."

Mumbuna appealed to the court not to accept the submissions by the defence and he maintained that the court had discretion to get into the contempt matter.

Malambo said in response that Mumbuna had mischaracterized the issue discretion that the court because magistrate Kafunda did not have such a discretion.

He said Mumbuna's argument over the procedure was synonymous to hanging someone before trial.

"Procedures are intended to safeguard the interest of justice, both justice for the state and justice for the accused," Malambo said.

Malambo said Mumbuna was incorrectly characterizing the law on the manner he was arguing the issue of the court's discretion on the matter.

"You do not have that discretion," Malambo told magistrate Kafunda.

Chisanga also replied by disputing Mumbuna's assertion that the editor-in-chief of the Post was not before court.

Chisanga urged the court to move away from the state's suggestion that it was on M'membe who was the editor-in-chief of the Post.

"For the record, your honour, we notify the court that in fact, Mr. Fred M'membe has been on study leave for some two or three months, including the period, in which the article that gave rise to these proceedings was published," he said.

Chisanga said M'membe was currently pursuing a course of Masters of Art in Economic Policy Management.

He said the person who was currently the editor-in-chief of the Post was Sam Mujuda, who was mandated to attend to the court in the absence of the summonses.

Mainza concluded the defence's response by saying that the usage of the word 'shall' left the court with no discretion.

The matter was adjourned to Monday.

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