The Lusaka Magistrates Court has reserved ruling in the matter whether the charge “unlawful assembly” of which Chongwe Member of Parliament Sylvia Masebo is charged with should be referred to the High Court for constitutional determination.
Magistrate Prince Mwiinga said yesterday he was reserving ruling to December 28 on whether the matter could be referred to the High Court and whether Articles 74 and 75 contravened Article 21 of the Constitution.
This was after defence counsel Robert Simeza in his submissions asked Magistrate Mwiinga to refer the matter to the High Court for constitutional determination as the charge was contravening Article 21 which guaranteed Masebo’s right to assemble freely in a democracy.
Mr Simeza contended that that the charge under Section 74 read together with Section 75 allegedly infringed the rights to freedom of assembly of Masebo and five others charged with her which they should enjoy under Article 21.
He further contended that the High Court must test whether Sections 74 and 75 were valid and if it was then it may be brought back to the lower courts.
Mr Simeza added that the two sections were ultra vires and invalid and fly in the teeth of Article 21 of the Constitution.
He said he was alive to the delegatory clauses under 21 but his position was that whether or not the two sections of the Penal Code qualified or fitted any delegatory clause under Article 21 would be a matter for determination by the High Court.
Mr Simeza said he was not asking the court to decide the constitutionality of Section 24 but to demonstrate that this was a matter that had various merits in the light of decisions that had been made in the subject in this jurisdiction.
In response, the State objected to the application to have the matter referred to the High Court as it would delay trial and that the matter was appropriate to be commenced in the lower courts.
The State contended that there was no authority that had discussed the validity of Section 74 of the Penal Code.