10 November 2009
A LUSAKA magistrates' court yesterday dismissed The Post newspapers editor-in-chief, Fred M'membe's application to stop the State from producing a case record which the State had used when M'membe appeared before chief resident magistrate, Charles Kafunda.
Magistrate David Simusamba threw out the application after M'membe's lawyers objected to the State producing the record, saying the record was invalid because the High Court had quashed contempt proceedings.
M'membe's lawyers, Remmy Mainza and George Chisanga said since the matter had been quashed by High Court Judge Albert Wood, the case was not valid and could not be used in any lower court.
Mr Mainza said Judge Wood nullified all cases relating to the contempt proceedings and the State's decision to produce documents quashed by a superior court could not be used in any judicial proceedings because they were null and void.
Mr Chisanga said the procedure taken by the State to produce quashed documents had no legal basis and an application should not be granted.
But divisional prosecutions officer, Frank Mumbuna said when Judge Wood quashed contempt proceedings before Mr Kafunda, he did not quash the case or the complaint.
The Lusaka High Court last month quashed contempt proceedings in which M'membe, columnist Muna Ndulo and the newspaper's deputy editor-in-chief, Sam Mujuda were cited for contempt for commenting on the case in which the newspaper's editor, Chansa Kabwela is charged with one count of circulating obscene material.
But Mr Simusamba said the ruling made by High Judge Wood was to quash contempt proceedings that were before Mr Kafunda and not the complaint.
"Indeed, there was a ruling by the High Court not to use the proceedings in any subordinate court. It is clear that the ruling was not quashing the complaint but the proceedings. Therefore, I find that the objection has no merit," Mr Simusamba said.
The magistrate said since the decision by Judge Wood was to quash the proceedings and not the compliant, the complaints and all the documents were still valid.
This is in a case in which M'membe and The Post newspapers are charged with one count of contempt of court contrary to section 116 (1) (d) (i) of the Penal Code chapter 87 of the Laws of Zambia.
M'membe and The Post newspapers are on August 27, 2009 alleged to have published an article touching on the case of Kabwela.
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