LAWYERS prosecuting Fred M’membe and his co-accused Wynter Kabimba have asked the Lusaka Magistrates Court to throw their application to refer the case to the High Court for determination of constitutional matter as it is frivolous and vexatious and should not be entertained.
One of the lawyers Keith Mweemba said the charges levelled against the duo were within the law and that there was nothing unconstitutional about them.
Nobody, Mr Mweemba said, has a right to defame and prejudice other people and insisted that the matter should proceed in the subordinate court, like any other criminal matter.
“Therefore, the court should dismiss the application with the speed of lightning,” he said.
Mr M’membe, Post Newspapers owner, and Mr Kabimba, Rainbow Party leader, appeared before magistrate Mulife yesterday for plea which they did not take because they raised constitutional issues through their lawyers Nchima Nchito and Eddy Mwitwa.
This is in the matter in which former President Rupiah Banda has dragged Mr M’membe and Mr Kabimba to court for defamation and contempt.
This followed Mr Kabimba’s comments on Mr Banda’s matter which was in court, and his comments were published in the Post newspaper.
Mr Mweemba said the subordinate court had the capacity to determine constitutional issues raised.
He said there was nothing the court might find which could warrant the charge to be quashed because charges were drafted with strict conformity to the law.
On duplicity of charges, Mr Mweemba said there was no duplicity because there were separate counts slapped on the two accused persons.
“Duplicity means double charges in one count; one act but there are separate charges. The court should dismiss the application of duplicity…these are separate cases, no double charges in one count,” he said.
Mr Mweemba said there was no duplicity in the charges but only contempt and defamatory libel.
On constitutionality of the contempt charge, Mr Mweemba said freedom of expression came with responsibility and it was not a right to defame others.
He said if the law of contempt was taken away, then there would be no need to have the judiciary and the matter should not be referred to the High Court for determination, adding that the subordinate court has power to determine the matter.
Another prosecuting lawyer Gilbert Phiri said the subordinate court had discretion to decide whether the application was frivolous and vexatious.
“It is not right that every time a lawyer rises he says ‘there is a constitutional matter, let’s go to the High Court’.
Othewise there will be no criminal trial,” Mr Phiri said.
And Mr Jonas Zimba, another prosecuting lawyer, said the court should dismiss the application and go ahead to set dates for trial.
Earlier, Mr M’membe asked the court to quash the charges slapped on him and Mr Kabimba because of duplicity while Mr Kabimba pleaded with the court to refer the matter to the Lusaka High Court for determination of constitutional issues.
Mr M’membe, through his lawyer Mr Nchito, said the charges were not fair because of duplicity as they have allegedly been charged with two charges under one alleged offence.
He said the charges given to him are related and submitted that charges were duplicated and therefore could not stand.
Mr M’membe said the lower court had no power to interpret the Constitution and has to refer such matters to the Higher Court for determination.
And Mr Kabimba, through his lawyer Mr Mwitwa, said the charges slapped on him and his co-accused offended their constitutional and fundamental rights to freedom of expression enshrined in article 20 of the Republican Constitution.
He said freedom of expression was not only fundamental but central and ideal to democracy and the court should exercise its discretion to refer the matter to the High Court to determine on how constitutional matters should be handled.
“It is our submission that the question is whether the charges levelled against us is against the constitutional provisions of freedom of expression in that both charges arise from the alleged publication of the newspaper,” he said.
Mr Kabimba said the matter should go to the High Court because basic human rights were a cornerstone to any democratic country and the court should guarantee fundamental basic rights.
Magistrate Mulife reserved the ruling for March 23.