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 2009-09-06 04:44 pm Back to NEWS
Cops attempt to arrest M’membe

POLICE on Friday stormed Post Newspapers offices to arrest Post editor-in-chief Fred M'membe despite High Court judge Albert Wood’s directive and order that proceedings relating to the alleged contempt case be stayed. Judge Wood directed that the proceedings relating to the alleged contempt of court case involving M'membe, his deputy Sam Mujuda and Professor Muna Ndulo be stayed until after the hearing of a motion for judicial review.

A team of six plain-clothe police officers from Lusaka Central Police led by the Criminal Investigations Officer (CIO) - a Mr Shula - stormed The Post premises at about 17:20 hours and demanded to see M'membe.

The officers were then led to where M'membe was in the company of Mujuda.

They demanded that they arrest M'membe but Mujuda produced a High Court order granted by judge Wood in favour of M'membe and other applicants.

When judge Wood's order was availed, the police officers doubted the authenticity of the document.

The officers then contended that they were not aware of the court order, arguing that if they had known about it they would not have come for M'membe.

After scrutinising the court order, Shula insisted that they could not leave M'membe until they proved the genuineness of the court order and receive further instructions from their unnamed superiors.

Shula was in constant communication with his superiors on phone enquiring the next step to take.

Amidst this drama, M'membe was still in the office and he was not allowed to leave.

Later, Mujuda took a copy of the court order to Lusaka division police commanding officer Greenwell Ng'uni who had earlier on demanded to see it.

At approximately 18:36 hours, Post lawyers George Chisanga and Remmy Mainza arrived and joined Mujuda in trying to convince the police officers.

Shula then explained to the lawyers that they no longer doubted the court order, but that they could not just leave until they received further instructions.

One police officer was heard saying theirs was a difficult profession where people were made to just follow orders.

"Sir you should understand that police is a disciplined profession. We are not like you people, we follow orders. Yes. I've seen the court order and in my view it's genuine, but I can't just leave without my bosses ordering me to leave. Please don't think we are here to cause problems, we are just following orders. I wish you could understand our predicament Sir," said the officer.

But Mainza reminded him that under normal circumstances police should have left his client the moment they saw the court order.

"We have given you a court order that has the signature of a High Court judge. The bench warrant you are talking about was issued by magistrate [Charles] Kafunda and has now been superseded by a High Court order. So what is your problem?" Mainza asked.

Chisanga warned the police officers that they would face the consequences of disobeying a court order if they went ahead with the arrest.

"It is quite a disappointment that you as police officers can choose to disobey a court order. And it is only in Zambia where such behaviour can be displayed. Are you as an individual disputing this court order?" Chisanga asked one of the officers.

The police officer responded that he was not disputing but working under orders.

"There are many bench warrants issued in our courts everyday and you people are always there. You know what I'm talking about, but have you ever treated such bench warrants in the same manner you are treating my client's bench warrant? There are some bench warrants that you do not even execute as police officers, but on this one you are so eager to arrest my client even after being shown a High Court order restraining you from doing so. Mind you, a High Court is superior to a magistrate court. And if you force yourselves on my client I will file for contempt against you as individual police officers. You will face the consequences alone and your bosses will not be there for you," Chisanga warned.

Shula later told the lawyers that the court order that Mujuda had earlier delivered to Lusaka Central Police had been taken to Police force headquarters for verification.

At this point, Chisanga asked on what basis the Inspector General of Police could verify a court order.

"I'm so disappointed that people can't obey a court order until the IG has seen it. Disobeying a court order is a serious contempt. I'm sure as a person who granted the order; judge Wood would be angry with you if he heard this. What it means is that you have chosen to say 'to hell with the court order', that's what you are telling the judge. Are you not supposed to go back now that you have seen a court order? We have served this court order on Mr Shula who is your team leader and that's enough," Chisanga argued.

And M'membe complained that police were detaining him illegally since the court order had been served on them.

"If their boss can take a court order to Force headquarters for verification, then you can understand their predicament. I imagine what would have happened to me if they found me at my home. Imagine if they came to my home and then I showed them the court order, they could have just ignored it and arrested me with a court order in my hands. If they can disobey a court order in the presence of lawyers then it could have been worse if I was alone. They have been given specific orders to arrest this 'dangerous criminal, M'membe and lock him up'," M'membe said. "But their bosses are failing to accept the reality that there is a court order stopping them from going ahead with the arrest. I know that if you arrest me today it would bring a lot of excitement to the people who sent you. But they are so disappointed with the court order that they can't accept the reality on the ground. I know that all this is coming from Rupiah because he had said that one day he would catch us. And maybe he thought that today he has caught us. So this court order has disappointed him and his colleagues. And in any case, why am I being detained here with a court order?"

M'membe and his lawyers were made to wait for over two hours before Shula got instructions that they should proceed to Lusaka Central Police Station.

But Chisanga refused to have M'membe accompany them to the police since there was a court order.

"My client is not going with you to the police station. As far as I'm concerned he is a free man because there is a court order in his favour," Chisanga argued.

It was then resolved that only the lawyers should accompany police to the station, around 19:59 hours.

Upon arriving at Lusaka Central Police Station at 20:06 hours, Ng'uni demanded that everyone else stayed behind, except for Mujuda, Chisanga and Mainza.

"Let us have order, we want to reason with you. We are only going in with the three lawyers, the rest can remain here and wait," Ng'uni said.

Ng'uni and M'membe's lawyers, who were joined by Prof Ndulo's lawyer Vincent Malambo then went into a meeting for over an hour.

And when the meeting finished around 21:16 hours, Mainza said the police had made an undertaking to comply with the court order.

"They are going to verify whether or not the Attorney General has been served with the order tomorrow. But in the mean-time they are not taking any further steps until they have verified. If the Attorney General confirms that the order has been served on them they are prepared to comply with the court order. As things stand the order will have to be obeyed by the police," Mainza said. "We don't expect the police to start looking for Fred in the night, they have made an undertaking. We met Mr Ng'uni who is the commanding officer and his deputy, there was also the district prosecutions officer (DPO) and the CIO was also in attendance in the meeting so that is how the meeting ended. Mr [Frank] Mumbuna was also in attendance so they have undertaken not to enforce the bench warrant until they have verified with the Attorney General tomorrow [yesterday]."

On Friday, judge Wood directed and ordered that proceedings relating to the alleged contempt of court case involving M'membe, Mujuda and Prof Ndulo be stayed until after the hearing of the motion for judicial review.

According to an order granting leave to apply for judicial review filed in the Lusaka High Court at the principal registry, justice Wood directed that further proceedings relating to the case be stayed.

Judge Wood's directive comes in the wake of the decision by Lusaka chief resident magistrate Charles Kafunda last Wednesday to issue a bench warrant for arrest against M'membe on grounds that he was fully aware of having been summoned to court but did not present himself before court.

But the defence lawyers in the case where US-based Zambian Professor of law 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.

(The Post)

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