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
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
Delivering ruling in the matter, magistrate Kafunda said
the summons to The Post editor-in-chief where properly issued.
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
Magistrate Kafunda said the court was not satisfied with the
reasons given by the defence counsel because M'membe was aware that he was
"I will therefore issue a bench warrant for his arrest," he
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.
have been served with two summons, they don't have the names. Unless the state
by means of ingenuity filed separate summons," he said.
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
"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."
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."
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
"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
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
"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
And Mumbuna said the action taken by the court to cite M'membe
"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,"
But Chisanga objected that the defence did not offer an
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."
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
"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
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
"There is only one editor-in-chief summoned who is aware of the
proceedings by having been duly summoned," he said.
said he maintains the reasoning given in the ruling that the bench warrant be
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
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
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
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
"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
Other defence lawyers, Remmy Mainza and George Chisanga, said
they were representing the persons that had been summoned by the court to appear
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
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
Kafunda said the summoning of the editorial staff was aimed at
determining whether these were connected to the authorization of the article
Kafunda then asked Mujuda, Malupenga and Yulu to confirm
their positions at the newspaper and explain such connections to the article in
But defence lawyer Mainza raised preliminary issues on need for
the court to prove that the persons before it were properly
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
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
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
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
"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
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.
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
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."
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.
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
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
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.
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
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.
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.