The Lusaka Magistrates Court has referred Chongwe Member of Parliament Sylvia Masebo’s case of unlawful assembly to the High Court for constitutional determination on whether Articles 74 and 75 contravene Article 21 of the Constitution.
This is in a case in which Masebo, 52, Joyce Sakala, 37, Kenan Kabunda, 50, and Emmanuel Chembo, 47, on September 15, 2015 are alleged to have, with intent to commit an offence or carry out some common purpose, jointly while acting together with other persons unknown, unlawfully assemble along Nationalist and Independence roads, thereby conducting themselves in a manner to cause persons in the neighborhood reasonable fear or breach of peace.
In his ruling Magistrate Prince Mwiinga indicated that he was of the view that Article 28 of the Constitution states that a matter could be referred to the High Court for determination when the person presiding the matter is directed to refer the matter if any questions arise without being prompted by any party.
He indicated that having considered the section of which Masebo is charged of he noted that the application was frivolous and vexatious of which it was in the best interest of justice to refer the matter to the High Court in determination whether it was inconsistent with the Constitution.
Mr Mwiinga indicated that Section 74 of the Penal Code was inconsistent with the guaranteed freedom of assembly and Article 21, adding that the State had failed to argue to why the matter should not be referred to the High Court as the only reason they gave was that if the matter was referred to the High Court it might delay the court proceedings.
Defence lawyer Robert Simeza had contended that that the charge under Section 74 read together with Section 75 infringed the rights to freedom of assembly of Masebo and five others which they should enjoy under Article 21.
He argued that the High Court must test whether Sections 74 and 75 were valid and if they were it might be brought back to the lower courts.
Mr Simeza added that Sections 74 and 75 were ultra vires and invalid and fly in the teeth of Article 21 of the Constitution
Hearing would continue after the High Court passes a ruling of determination.