Former President Rupiah Banda‘s fears and concerns that Director of Public Prosecutions (DPP) Mutembo Nchito cannot fairly prosecute his friend and business partner Post newspaper owner Fred M’membe have merit, Lusaka Magistrate Mwaka Mikalile has ruled.
This is in a case in which Mr Nchito as DPP decided to take over a matter in which former President Banda sued the Post Newspaper and its owner Mr M’membe for contempt of court, in a private prosecution.
Mr Banda has however challenged the DPP’s decision, arguing that Mr Nchito is conflicted to prosecutive his ally, M’membe as the two are friends and business partners.
In her ruling yesterday, Magistrate Mikalile said the court could not therefore proceed with the matter until the High Court determined the constitutional issues the former Head of State had raised.
In this matter, President Banda has filed 19 criminal contempt charges against the Post Newspaper and its owner M’membe who have been accused of slandering and convicting the former president through newspaper editorials.
President Banda has complained that the editorials were intended to influence the outcome of the court process in which he was appearing and thereby prejudice the proceedings.
In a complaint submitted to court on 25th April 2014 and subsequently reduced to 19 criminal charges, Mr M’membe together with his newspaper, the Post have been charged with contempt for writing defamatory and contemptuous editorials in total disregard of court proceedings which president Banda firmly believes was meant to influence the court process.
But before Mr Banda could start his private prosecution of Mr M’membe, DPP Nchito through his deputy chief state advocate Mable Nawa announced to Magistrate Mikalile that the State was taking over the prosecuting of a matter to which the former president strongly objected on grounds that the DPP was highly conflicted because the accused was not only his friend but his business partner.
But yesterday, Magistrate Mikalile said if any person, unless the matter was withdrawn expressed fears that he could not receive fair hearing and trail, it called for constitutional considerations and that the Magistrate Court did not have the jurisdiction to determine constitutional maters.
Magistrate Mikalile said while Mr Nchito as DPP had the power to take over any case, lawyers representing president Banda had raised legitimate fears that the DPP was a business ally of Mr M’membe.
Magistrate Mikalile said it was also true that the DPP was the lead prosecutor in other matters where former President Banda was the accused in some corruption cases.
“The question being raised by the applicant (president Banda) is one of merit and it is only the High Court that can determine the constitutional issues that have been raised. My ruling on matters in this court will not be bound by the rulings of other courts but will be on merit. The matter is hereby stayed pending the determination by the High Court on the constitutional issues that have been raised,” Magistrate Mikalile said as Mr M’membe’s face fell into crest.
President Banda has dragged Mr M’membe and the Post Newspaper to court for maliciously insinuating in their editorials that the former Head of State was corrupt.
He complained that the duo jointly and while acting together did write contemptuous editorials while a judicial proceeding involving the former head of State was pending.
In the first count, Mr M’membe and the Post Newspaper are said to have caused the publication of an editorial comment entitled ‘What is Rupiah afraid of’ whose contents were prejudicial or capable of prejudicing former President Banda who was an accused in the proceedings.
President Banda complained that the publication was calculated to lower the authority of the court before whom the former Head of State court proceedings were taking place. In the second account, Mr M’membe and the Post Newspaper are said to have caused the publication of a contemptuous editorial comment entitled ‘Hakainde is nothing but a defender of corruption’ whose contents were prejudicial. Mr M’membe and the Post Newspaper in the third count are caused of publishing an editorial comment entitled ‘Some people forget early’ in which the duo accused president Banda of being a corrupt man.
In the fourth and fifth counts, the duo jointly and whilst acting together caused the publication of editorial comments entitled ‘Why are you defending Rupiah’s corruption?’ and ‘Why is MMD defending corruption?’ whose contents were prejudicial against and capable of prejudicing president Banda and which publication were calculated to lower the authority of the court before which the former head of state court proceedings were taking place.