FRED M’membe and his newspaper the Post, have joined suspended Director of Public Prosecutions (DPP) Mutembo Nchito in appealing against the decision of the High Court to stop the DPP from taking over the matter in which former president Rupiah Banda has sued Mr M’membe and his newspaper for contempt.
Mr Nchito wants proceedings in the Lusaka magistrates court to be stayed pending the outcome of his appeal to the Supreme Court.
Recently, High Court judge Chalwe Mchenga ruled that Mr Nchito could not take over the prosecution of the matter because he is a business partner of Mr M’membe, and Mr Banda will not be afforded a fair trial.
According to grounds of appeal filed in the Supreme Court yesterday, Mr M’membe and the Post submitted that Judge Mchenga erred in law and fact in holding that the duo could not be prosecuted by the National Prosecution Authority and ordering that they could only be prosecuted by private citizens
Mr M’membe argued that the decision by the judge would deny him and his newspaper the right to which they are entitled.
He submitted that Judge Mchenga erred in law and fact when he made his findings against them on the basis of article 18 of the Constitution without considering the rights of the accused to have a fair trial.
“The learned trial judge erred in law and fact in determining the matter before him without affording the first appellant and second appellant an opportunity to be heard,” they said.
Mr M’membe said Mr Justice Mchenga erred in law and fact when he ruled that Mr Banda had a right to a fair trial when he was not a party to the proceedings.
Judge Mchenga also ordered that the case which was referred to him for constitutional reference should be sent back to the subordinate court for commencement of trial. Former president Banda sued Mr M’membe and the Post Newspapers for contempt of court over 19 editorials published in the paper which bordered on matters about him which were already in court.
Soon after Mr Banda’s action, Mr Nchito made an application before Lusaka Magistrate that as DPP, he was taking over the prosecution of the case.
Lawyers representing Mr Banda objected to Mr Nchito’s application, saying there was no way he could prosecute the case when he was a business partner of Mr M’membe.
Mr Nchito asked the subordinate court to send the matter to the High Court for determination of its constitutionality.