THE Lusaka Magistrate’s Court has dismissed an application for an order to open The Post Newspaper’s premises to enable Fred M’membe to access documents to mount his defence in a matter he is jointly charged with Rainbow Party president Wynter Kabimba for criminal libel and contempt of court in relation to a published article concerning former president Rupiah Banda.
Mr M’membe, who is the Post’s editor-in-chief, and Mr Kabimba are alleged to have caused the publication of a defamatory article in relation to the former President.
Chief Resident Magistrate Kenneth Mulife dismissed the application because it was not properly before court as the application could not be made in absence of the accused persons.
Mr Mulife said he had taken into consideration what had been presented by both the defence and the State, and that he had perused the evidence on record and his general position in the matter before the court was that in criminal proceedings, a criminal matter could not take place in absence of the accused persons.
He said in the case before court, he said he had not seen any of the inceptions that he had outlined above and under those circumstances the court may act ultra-vires in law if it proceeded in granting the defence’s application in the absence of the accused.
Mr Mulife advised the defence to make such an application in the presence of the three accused.
In his application defence lawyer, Chisuwo Hamwela asked the court to allow access to his client’s work premises, Mr M’membe, in conformity of an order granted by the Tax Appeal Tribunal as it was publicly known that the premises were closed.
Mr Hamwela humbly asked the court to aid the accused person to have a full right of the law.
In response, the State through Keith Mweemba submitted that it was not proper at that stage for the defence to come up with such an application because the matter was only scheduled for mention.
Mr Mweemba said the application was not attainable because the accused were not in the dock and that the date for opening of defence had already been set.
The matter comes up on July 25 and 26 for opening of defence.