My charge foolish -M’membe

WYNTER Kabimba and his political promoter Fred M’membe were yesterday locked up after their applications for constitutional reference were dismissed as frivolous and vexatious.

But the duo refused to go to police holding cells demanding for a decent place to wait from before their bail conditions were fulfilled.

Earlier Mr M’membe, owner of the Post Newspapers was made to eat humble pie when he retracted and apologised for declaring that the charges he was facing were foolish.

When it was time for M’membe to take plea in the first count and asked whether he understood the charge he responded: “I don’t understand this foolish charge.”

This prompted the prosecution lawyers to demand that taking of plea be stopped immediately until the use of “foolish”  was addressed by the court.

M’membe was made to apologise for the use of the word “foolish” but he said that he did not mean to be contemptuous to the court.

“I did not intend to be contemptuous to this court by my reference to ‘foolish’. It is in relation to the complaint in the matter against me by the complainant, I apologise to the court for using the word,” he said.

M’membe thereafter took plea of not guilty on both counts.

The Magistrates dismissed two applications to drop the charges leveled against them and referred the matter to the High Court for determination of constitutionality.

Last week, Mr M’membe asked the court to quash the charges slapped on him and Mr Kabimba because of duplicity while Mr M’membe pleaded with the court to refer the matter to the Lusaka High Court for determination of constitutional issues.

Mr M’membe, through his lawyer Nchima Nchito, said the charges were not fair because of duplicity as they have allegedly been charged with two charges under one alleged offence and therefore could not stand.

And Mr Kabimba, through his lawyer Addie 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 hence the need to refer the matter to the High Court for determination on constitutionality matters.

However, Magistrate Kenneth Mulife said there was no duplicity in the two counts because each one of them was a distinct charge.

The magistrate said it was settled law that duplicity renders a charge bad and on that basis, the charge is liable to be quashed.

“In the view that I have taken, I have found no duplicity in the matter because each of the two counts carry one distinct offence, accordingly, the first preliminary issues shall fail,” he said.

The magistrate also ruled that there was no need to refer the matter to the High Court for determination. Mr Mulife said based on precedence he found that section 191 of the Penal Code regarding the offence of defamation was not inconsistent with the Constitution.

He said based on authorities, he found no basis to refer the matter to the High Court because there are no constitutional issues that merit the intervention of the High Court.

“This position is pursuant to article 28 (2) (a) of the Constitution which empowers this court to determine whether or not to refer such matter of application to the High Court.

“In total, both preliminary issues have failed and are accordingly dismissed. I further direct that the accused persons take plea forthwith,” Magistrate Mulife ruled.

After the applications were dismissed and the duo ordered to take plea, Mr M’membe through his lawyer Nchima Nchito, said according to Criminal Procedure Code, the complainant, former president Rupiah Banda, was supposed to be present in court.

He said yesterday was the third time the matter was coming up in court and Mr Banda could not pretend that he was not aware of the sitting.

Mr M’membe said there was no reason given to the court for the absence of Mr Banda, stating that because of that he and his co-accused should be acquitted.

“In the absence of the complainant, the accused persons are entitled to an acquittal,” he said.

But the prosecution team led by Keith Mweemba argued that the court should not entertain such an application because the former president was represented by his counsels. He said there was no way the accused persons could be acquitted when the trial had not yet commenced stating that Mr Kabimba and Mr M’membe should take plea first then they could ask for an acquittal.

“A complainant can appear in court by his advocates or by his counsels,” Mr Mweemba said.

He said the persons’ application for an acquittal was yet another frivolous and vexatious action and irrelevant which should be dismissed hastily.  Another prosecution lawyer Makebi Zulu said the absence of Mr Banda could not make it impossible for court proceedings commence.

“The application should be dismissed by the same haste it was made,” Mr Zulu said.

But Magistrate Mulife overruled Mr Kabimba and Mr M’membe demanding for the presence of the former president before taking plea and ordered them to plea.

He then gave the duo K5, 000 each bail with two working sureties domiciled in Lusaka.

After the court proceedings Mr Kabimba and Mr M’membe were held inside courtroom while their lawyers were struggling to look for working sureties.

Around 13:00 hours, police ordered them out of courtroom so that they sit on public concrete seats outside the courtroom but they refused and demanded to put in a decent place.

Later the police officers led them to an office where state prosecutor sit and plan for their day’s work.

They were only released after 15:00 hours after meeting the bail conditions.

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