By CHARLES MUSONDA
CHISHIMBA Kambwili’s attempt to have his defamation of the President case referred to the High Court for constitutional determination is frivolous, mischievous and vexations, the State has argued.
The State, through private prosecutors Jonas Zimba and State Counsel Emmanuel Bupe Mwansa, says superior courts have already dealt with issues that Kambwili’s lawyers Keith Mweemba and Gilbert Phiri have raised in their application to refer the matter to either the High Court or Constitutional Court.
This is in a case Kambwili, the National Democratic Congress (NDC) leader, is charged with defamation of the President over his remarks insinuating that President Lungu and Lusaka business executive Valden Findlay were allegedly using the presidential jet to courier narcotic drugs.
The defence lawyers have argued that particular issues they have raised relate to infringement of Articles 13 to 23 of the Constitution anchored on the Bill of Rights.
But in response, the State has argued that the issues referred to by the defence lawyers were answered in the Fred M’membe and Bright Mwape case and that “in fact in that case the Court indicated that there is nothing that immunises anyone under Article 20 from defamation.
“Defamation is an offence. In that case again the Court indicated that defamation of the President is reasonable under the Law,” the State’s submissions read in part.
Kambwili’s lawyers also went on to argue that Article 28 of the Constitution allows them to refer the matter to the High Court but the State has submitted that the said Article 28 (ii) shows that a question can only be referred if it is not found to be frivolous and vexatious.
The State has also argued that the issues raised by the defence have been dealt with by superior courts and in the circumstances the latter’s questions are merely frivolous and vexatious.
The State has also submitted that there is no basis for reference of the matter to the Constitutional Court in the alternative as argued by the defence.
Kambwili’s lawyers have also cited the Christine Mulundika case, which the prosecution says is not applicable to “this particular case because it deals with the Public Order Act and we are dealing with defamation of the President.”
They have also cited the McDonald Chipenzi case where Judge Isaac Chali decided that false publication was unconstitutional but the State has argued that Kambwili’s case before Lusaka Magistrate Felix Kaoma is defamation under Section 69 and not false publication under Section 67 (of the Penal Code Chapter 87 of the Laws of Zambia).
On the defence lawyers’ argument that the defamation of the President indictment is defective, the State has argued that there is no defect in the indictment because it complies with Section 134 of the Criminal Procedure Code (CPC) Chapter 88 Volume 7 of the Laws of Zambia.
On the defence’s prayer to the court to quash the indictment using Section 274 of the CPC, the State has argued that Section 274 is under Part 9 of the CPC which refers to proceedings under the High Court and it is inapplicable to the matter before the Subordinate Court.
Meanwhile, Mr. Kaoma could not deliver ruling yesterday as he had just received the parties’ submissions yesterday morning owing to skeleton staff that have been working at the Lusaka Magistrates’ Court for the past few weeks due to the Covid-19 outbreak; and adjourned the matter to next Friday.
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