Trial in a matter in which President Michael Sata has sued the Daily Nation newspaper proprietor Richard Sakala and University of Zambia lecturer Choolwe Beyani for defamation resumes today.
When President Sata first appeared in court, he disparaged Lusaka prominent lawyers Vincent Malambo by alleging that he was removed from representing the Development Bank of Zambia (DBZ) because of incompetence forcing the lawyer to apply to join in the matter to which the President has objected.
But last week, State Counsel Eric Silwamba told the High Court that Sata waived his immunity the moment he subjected himself to the jurisdiction of the Lusaka High Court because the shield of Presidential immunity was not intended as a spear to disparage, defame and malign citizens.
“The plaintiff has brought himself into the jurisdiction of this court and cannot be heard to use immunity.” He said, referring to the evidence President Sata gave when he disparaged the professional competence of prominent Lusaka Lawyer Vincent Malambo early this month.
“This court has inherent powers to protect non-parties from being defamed especially where the person involved is an officer of the Court.” Mr. Silwamba told Judge Lengalenga who is presiding over the matter.
Order 15 of the laws, he said, conferred wide discretion on the court to join parties, even against the wishes of the plaintiff.
The shield of immunity attached to the presidency as an institution, he said, was not licence for the office holder to use as a spear to execute malicious defamation of individual, because such defamation during court proceedings was not protected by law.
Instead, he said, the court enjoyed wide discretionary powers to join individuals whose character and professional standing would be injured by such court proceedings.
The President, he said, could not enjoy immunity to maliciously defame and injure the professional standing of an individual, such as Vincent Malambo, a lawyer who was also an officer of the court.
Mr. Silwamba was responding to objections against prominent Lusaka Lawyer Vincent Malambo to join the case in which the President has sued the Daily Nation for defamation following the publication of a story that he was shielding his friends Mutembo Nchito the DPP, Fred M’membe the owner of Post Newspaper and Nchima Nchito- all directors of the defunct Zambian Airways from paying back K14billion to the Development Bank of Zambia which according to Judge Nigel Mutuna was obtained by fraudulent misrepresentation.
When the matter came up in court in May, President Sata stunned the Lusaka High Court when he ordered a court marshal to look for a judge upon his arrival at the court for his defamation case.
Mr Sata who was accompanied by his son Lusaka Mayor Mulenga Sata, Justice Minister Wynter Kabimba and other party officials and cadres disembarked from his private beige BMW car and walked to the foyer where he immediately asked one of the marshals about the whereabouts of the Judge because he was tired of waiting.
“You court marshal where is your Judge. I am tired of waiting” as his lawyer tried to remind him on the need to maintain silence because there were processes and court etiquette to be observed.
The marshal quickly disappeared to the Judge’s chambers and came back a few minutes later but Mr Sata was at it again and ordered him to go back and only come with the Judge much to embarrassment of the people that filled up the court.
When Mr Sata’s case was called, his lawyer Mr Bonaventure Mutale asked for a short adjournment from the trial Judge Justice Florence Lengalenga because the President had decided to personally testify.
According to the law, the Daily Nation and Mr Sakala’s lawyers will subject the President to rigorous questioning in an open court which could last long hours.
The matter was adjourned to June 24 and 25 for cross examination and trial respectively.
The Head of State is today expected to be cross examined by the defence lawyers after they had obtained an adjournment for further instructions from their client Richard Sakala.
In the same case Lusaka’s prominent lawyer Vincent Malambo applied to the Lusaka High Court as a joinder in the case but the head of a state through his lawyers rejected Malambo’s application as a joinder because Malambo was incompetent.