Tue, 28 Feb 2017 10:52:18 +0000
By Charles Musonda
Controversy erupted in the Magistrates court yesterday following a decision by the Law Association of Zambia (LAZ) to appoint lawyers to represent Nchima Nchito, facing a charge of impersonation.
Prosecutor, Rabson Malipenga, demanded to know on what basis LAZ a statutory body appointed lawyers Mwenye and Nchito to represent Nchima in a private matter.
In the same court Laz President Linda Kasonde was in attendance, allegedly in watching brief.
Nchito is charged with impersonation of an advocate of the Post newspaper Ltd (in liquidation).
The charge says this was contrary to section 378 (1) of the Penal Code Cap 87 of the Laws of Zambia.
LAZ’s decision to attach seemingly ‘‘special’’ importance and interest to Mr Nchito’s case has raised questions among some senior legal practitioners who could not remember similar instance where the association had in the recent past constituted a team of lawyers to defend a member facing criminal allegations.
When the matter came up for plea before Magistrate Greenwell Malumani yesterday, former Solicitor General Musa Mwenye informed the court that LAZ had appointed him and two other lawyers, one from Messrs. Nchito Nchito and another one from Messrs. Mwenye Mwitwa Advocates, to defend Mr Nchito.
Mr Mwenye also told the court that LAZ president Linda Kasonde was in court to watch the case in brief.
Private prosecutor Robson Malipenga objected to the three lawyers’ representation of Nchito on grounds that LAZ was a statutory body which had powers to sue and to be sued and it could only appoint counsel who represented its interests. “LAZ is a body corporate and can’t appoint lawyers to represent the accused person. In that regard we apply that the three advocates appointed by LAZ should not represent the accused person,” Mr. Malipenga said.
He said the prosecution was not denying Nchito his right to legal representation and that the prosecution would be glad if he chose his own lawyers to represent him and not the ones appointed by LAZ.
“LAZ has no legal mandate to appoint lawyers who will come to court and place themselves on record as appointed by LAZ,” said.
In reply, Mr. Mwenye said Section 4 of the LAZ Act provided for the association to represent, protect and assist its members. “LAZ has statutory duty to protect and represent its members. Mr. Nchima Nchito, State Counsel, is a very senior member of LAZ and in appointing me, LAZ is discharging its statutory duty,’’ Mr Mwenye said.
Magistrate Malumani ruled in favour of the defence after observing that provision of the LAZ Act did not explicitly state the type of matters upon which the association could appoint lawyers to represent its member.He said the provision appeared not to set barriers regarding where the accused person’s lawyers should come from.
And before Nchito could take plea, Mr. Mwenye applied to the court to quash the charge against his client on grounds that the indictment did not reveal any criminal offence on Nchito’s part. “Elements of the said offence are twofold: (1) the accused must have intent to defraud a person. We submit that this intent must be stated explicitly in the charge. Secondly, in addition to intent to defraud, the accused must falsely represent himself to be that other person who may be dead or alive,” Mr. Mwenye said. He said Nchito did not need consent of the receiver or liquidator before commencing legal proceedings in the name of the Post Newspapers Limited (in liquidation). The court has adjourned the case to April 3, 2017, to enable the prosecution study provisions and authorities cited by Mr. Mwenye before responding to his application to quash the charge.
