Post Newspaper owner Fred M’membe and Rainbow Party leader Wynter Kabimba will now face criminal defamation charges after the Court dismissed their application for acquittal on grounds that the complainant former Republican President Rupiah Banda’s immunity had been restored and this effectively barred him from taking part in any criminal proceeding either as a witness or a complainant.
Chief Residence Magistrate Kenneth Mulife also refused to refer the M’membe and Kabimba matter to the Constitutional court for constitutional determination because there were no constitutional issues that merited the intervention of the Constitutional court.
This is in a matter in which M’membe and Kabimba stand charged with contempt of court for allegedly publishing a contemptuous article entitled ‘Lungu’s Government is framing Nchito to cover up Rupiah’s Criminality- Kabimba’.
In his ruling, Mr Mulife said he found no basis to acquit the accused or refer the matter to the constitutional court.
He said he had considered the three questions arising from the submissions which were on whether or not the declaration of the nullity of the offence under the first limb
of the consent order entitled the accused to an acquittal, whether or not the complainant was a compellable witness for the defence and whether or not the complainant raised constitutional issues requiring the court to refer the matter to the Constitutional Court for determination.
Magistrate Mulife said it was not in dispute that the complainant’s immunity was restored following his acquittal for the offence through a consent order. He added that he was of the view that the decision to acquit the accused was not dependant on whether or not the instant charges arose from offences which were later nullified by the consent order.
Mr Mulife said the paramount consideration was whether or not the charges arose from the publication of the alleged adverse comments made on cases which at the material time were on going before the courts of law.
He further said he was of the view that the mischief intended to be cured by the instant charges were utterances. Mr Mulife dismissed the preliminary issues saying the defence had failed. He directed the accused to proceed to defend themselves against the instant charges. In the last sitting, Kabimba and M’membe applied for their case to be dismissed following the restoration of President Banda’s immunity. Eddie Mwitwa submitted that according to the Constitution, it barred any person whose immunity had been restored from taking part in any criminal proceedings either as a witness or as a complainant.
But State lawyer Makebi Zulu objected to the application and insisted that M’membe and Kabimba stand trial for criminal defamation of former President Rupiah Banda and contempt of court in spite of the restoration of the immunity to the former head of State.
He argued that President Banda had been acquitted of criminal charges before a consent order was presented. Therefore, the matter before the court should proceed to its logical conclusion. Mr Zulu added that whether or not the complainant’s immunity was restored did not change the circumstances of the case before the court because defamation was criminal and any person who felt aggrieved could seek justice.