May 9, 2014 [Times of Zambia]
DIRECTOR of Public Prosecutions (DPP) Mutembo Nchito has taken over the prosecuting of a matter in which former Republican President Rupiah Banda has sued the Post Newspaper Limited and its editor-in-chief Fred M’membe for contempt of court.
Lusaka senior magistrate Mwaka Mikalile granted the application from Mr Nchito as chief prosecutor of the State.
Mr Banda has in this matter sued the Post and Mr M’membe as first and second defendants respectively and is asking the court to cite them for contempt over 19 editorial comments published in several editions of the newspaper.
The former President contends that the defendants have breached the law by publishing articles alleging that he was corrupt and that editorial comments were prejudicial as he was already in court facing corruption charges.
When the matter came up for plea before Ms Mikalile yesterday, deputy chief State advocate from the DPP’s chambers Mable Nawa informed the court that the State would be taking over the matter.
Ms Nawa requested for an adjournment to enable her office and the complainant, Mr Banda, to review the case.
But one of the defence lawyers Makebi Zulu of Makebi Zulu and Associates said his client found it absurd or bizarre for Mr Nchito to take over prosecution of the matter because his client had prepared to take a particular course.
“We are skeptical about the take-over. We pray that the exercise of the discretion is in good faith because the nature of the application is not the one we are allowed to object to,” Mr Zulu said.
Another lawyer Keith Mweemba said Mr Banda as a complaint can undertake criminal proceedings without the DPP’s intervention.
Mr Mweemba said the guarantee of a fair trial contained in the Constitution was not only for the complainant but also for the accused especially that the contempt charge intended to preserve the authority of the court and the right of Mr Banda.
Jonas Zimba another lawyer representing Mr Banda said the application by Mr Nchito entails that issues under the Bills of Right part III of the Constitution will come in issue.
Mr Banda then asked the court to refer the matter to the high court for determination of its constitutionality.
But in her ruling Ms Mikalile agreed with the State and allowed Mr Nchito to take over. She said the DPP was merely exercising his powers.
Ms Mikalile said she could not at this stage refer the matter to the high court because she did not see any reason to do so.
After the ruling, Mr Zulu said that although his client was still not comfortable with Mr Nchito prosecuting the matter, there was nothing he could do because the DPP was merely exercising his powers.
She adjourned the matter to June 2014 for possible plea and to give Mr Nchito and Mr Banda time to review the charges slapped against Mr M’membe and the Post.