Chongwe Member of Parliament Sylvia Masebo has refused to be granted a nolle prosequi by the State in a matter where she is charged with unlawful procession.
Masebo refused to be granted a nolle when the State wanted to enter a nolle against her when she appeared before Lusaka Magistrate Lameck Mwale.
Masebo’s lawyers Robert Simeza and Keith Mweemba objected that the State could not enter a nolle in a charge that did not exist.
The defence lawyers told the court that they had submitted that the charge Masebo wasfacing should be quashed and that a nolle could not be entered because the charge lacked merit.
In the last sitting during the opening of trial this week, Masebo asked the court to refer her case to the High Court for constitutional determination in a case where she is charged with unlawful procession.
Mr Simeza in his application told the court that according to the indictment, Masebo in count one is charged with unauthorized procession pursuant to section 7A of the Public Order Act.
Mr Simeza said the charge was unconstitutional as it was contravening Article 22 of the Constitution which guarantees the protection of freedom of movement.
He said Section A restricts the accused person’s freedom of movement but Article 28 (1) of the Constitution specifically provides that a citizen shall not be deprived of his or her freedom of movement which includes the right to move freely.
Mr Simeza stated that his application was that count one should make a constitutional reference to the questions arising out of this matter to the High Court for determination pursuant to Section 28(2A) of the Constitution.
He further stated that it was his clear understanding that it also provides for the two scenarios which when one observes the constitutional issues either of the party could refer the case to the High Court.
Mr Simeza said in that case the court was obliged to refer the matter to the High Court and it was mandatory.
He said Masebo’s count two had another case of escaping from lawful custody. It was their application that count two was not a standalone charge as it arises from elements of count one and it presupposes custody which was the subject charge but could be illegal if the High Court should agree that the purported offence which led to Masebo’s arrest was unconstitutional.
The matter continues on November 18 for ruling.