…He preferred to be prosecuted by his

partner, suspended DPP Mutembo Nchito

THE Supreme Court has thrown out an attempt by the Post Newspapers and its proprietor Fred M’membe to halt proceedings in a contempt of court case against them before the Subordinate Court.

This is in a case in which suspended Director of Public Prosecutions Mutembo Nchito wanted to take over the matter from private prosecutors on behalf of his business partner M’membe.

The Post Newspaper and its editor-in-chief M’membe were accused of publishing 19 articles suggesting the former president Rupiah Banda was a criminal and therefore guilty of charges of corruption and abuse of authority of office, and yet the matter was still in court.

The Supreme Court has ruled that Mmembe and the Post Newspapers must face the charges and stand the trial as no conceivable prejudice would be suffered.

This is a matter in which suspended Director of Pubic Prosecution (DPP) Mutembo Nchito had decided to take over the private prosecution against M’membe by private lawyers Makebi Zulu and Keith Mweemba following the repeated publication of stories that suggested that Mr Banda was criminal even though the matter was before the court.

Judge Kaoma in her ruling noted that M’membe through the Post Newspaper authored and published a report suggesting that Mr Banda was a corrupt person.

Mr Banda in turn complained to the Magistrate Courts about the publication.

The magistrate, according to Ms Justice Kaoma, held that the complainant was presumed innocent until proven guilty and that proceedings should be reported accurately. “Despite the ruling the respondents published 19more articles in the same contexts. This prompted the complainant to lodge a complaint against the respondents pursuant to section 90 of the Criminal Procedural Code, Cap 88 of the Laws of Zambia and the Magistrate drew up a charge sheet containing 19 counts of contempt of court contrary to Section 116 (d) of the Penal Code,” she said.

When the matter came up for plea on 8 May 2014 Ms M.B. Nawa, the deputy State advocate informed that court that the DPP was taking over the prosecution of the case pursuant to Article 56 of the Constitution, but lawyers representing Mr Banda opposed the takeover  because their client’s rights to a free trial could be breached.

The matter then went to the High Court and several motions were moved.

Supreme Court Justice Roydah Kaoma in her ruling dismissed the attempt to stop criminal proceedings in the magistrate courts because M’membe as an accused person did not have the right to choose his own prosecutors.

Ms Justice Kaoma charged that there were no convincing grounds of appeal to allow for proceedings to be stopped in the contempt case before courts, as it would insinuate that M’membe could actually choose his own prosecutors in the matter.

“Having thoroughly examined Rule 29, it is my view that it does not apply to stay of proceedings, so any such application premised on this rule is procedurally flawed.

“In any case, having perused the grounds of appeal, I find that there is no good or convincing ground to justify the exercise of my discretion to stay proceedings of the Subordinate Court,” as doing so would amount to stopping the prosecution, the judge said.

And the Supreme Court also ruled that M’membe deliberately overlooked the High Court in his appeal, making their case incompetently before her court.

She said unless the application made at High Court was denied, there was no need to rush to the Supreme Court without seeking redress at the lower court.

“In other words, the application to stay the Subordinate Court proceedings ought to have been made in the first instance to the Subordinate Court, considering that the High Court was functus officio after it sent the matter back to the Subordinate Court.

“Thus I find the application before me to be incompetent,” she ruled.

She also charged that M’membe and the appellants failed to show how they would suffer prejudice if not granted the stay of proceedings in the criminal case against them.


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