Friday, June 01, 2007

Chiluba's trial should proceed, orders court

Chiluba's trial should proceed, orders court
By Laura Mushaukwa
Friday June 01, 2007 [04:00]

ACTING deputy registrar of the High Court Jones Chinyama, sitting as a magistrate, has ordered that the trial of second Republican president Frederick Chiluba and two others should proceed in August.

And Magistrate Chinyama has rejected an application by defence lawyers Robert Simeza and John Sangwa to have the matter referred to the High Court to raise some constitutional issues in the matter.

Earlier, state prosecutor Mutembo Nchito informed the court that Chiluba was examined and it was found that his condition, although not the best it could be, had improved from the last time he was examined by the doctors.

Nchito told the court that Chiluba’s condition was somewhat unpredictable and it was the doctors’ opinion that he could only stand trial if certain exogenous factors were induced.

He explained that trial could only proceed in private where the accused person was not exposed to crowds, and was in a comfortable environment where the length of the proceedings was monitored and where Chiluba was not required to stand.
Nchito told the court that the state would endeavour to provide the facilities so that Chiluba could participate in the proceedings.

But defence lawyer John Sangwa argued that the medical report was not very helpful.
“I have looked at the report and some of the things said are not in this court. The report is clear about the unpredictable nature of his cardiovascular problem and he is not fit to stand trial. If trial has to take place it has to be in private, it is our submission that the report is not very helpful,” he said.

He argued that from the report Chiluba was not fit to stand trial.
“Trial which is envisaged is where A1 is present before court, following the proceedings himself. My reading of this report is that he is not fit to stand trial,” Sangwa said.

To corroborate Sangwa’s argument, defence lawyer Robert Simeza argued that trying Chiluba in private surroundings was not consistent with Article 18 (2) of the constitution.

“Article 18 (2) clearly provides that unless with his own consent, trial shall not take place in his absence. The only time trial can take place in the absence of the accused is where he conducts himself in a manner that renders a continuation of the proceedings impracticable,” Simeza said.

“A simple question that was put to the doctors was simply whether A1 was fit to stand trial. There answer rests on the findings after examining the patient. They went beyond the scope of the directive to suggest an alternative which to my understanding of the report, if it is imperative that under no circumstances he has to stand trial then it should be done in private surroundings, your honour this is where the problem begins.”

He further argued that although this was happening in other parts of the world, the constitution had not moved with the times.

“It would require to amend Article 18, for trial to be carried out in that fashion. This hinges on the fundamental rights of the accused person; the right to protection of the law,” Simeza noted. “It is a very serious issue which we cannot afford to gloss over or look at in a simple way.”

In reply Nchito said the doctors had given an option that if certain things were done such as having a trial in private, the matter could proceed and that the document from UTH was made to assist the court and not replace the court.

“It has been suggested by the defence that somehow there is a fundamental constitutional issue coming into play in the circumstance of this case. We submit that there is no constitutional issue,” Nchito said. “Article 18 being referred to provides that an accused person shall be afforded the facilities to participate in the criminal proceedings in which he is part of.”

He contended that the issue had pended for a long time and it was in the interest of both parties to conclude the matter.

“We submit, your honour, that a private or controlled trial can be provided by video link,” Nchito said.

After listening to the pleadings, Magistrate Chinyama established that both the defence and the state agreed that Chiluba was not at his best physically.

He also took into account the fact that the matter had been pending for a long time and that two other accused persons in the case who were eager to see it concluded.
Magistrate Chinyama ruled that there were no constitutional issues in the matter and that trial should continue whether by video link or in the comfort of Chiluba’s home.
He adjourned the case to June 29 and July 27 for mention while trial would run from August 14 to 17 and 27 to 31.

Magistrate Chinyama also rebuked The Post for making news items out of matters that were before the courts.

This was after defence lawyers Robert Simeza and John Sangwa complained that the report was published in the Post Newspaper before they or Chiluba himself saw it.
“We would like to know, and the court should be interested to know, how this report found itself in the hands of the media contrary to the directive which the court made. The doctors who examined Dr. Chiluba, who are in this court room, should shade light on the movement of the report, someone somewhere has absolutely no regard for this court,” Simeza said.

Simeza told Magistrate Chinyama that it was an issue of grave concern upon which he wanted to seek the courts’ guidance.

“There is an issue of grave concern upon which we seek the courts guidance. At the last sitting on May 18, you did issue a directive that the committee of doctors of the UTH attending to A1 do examine him and render a report on the findings to this court,” Simeza said.

“We did comply with that directive by availing our client to a committee of doctors, after they examined him they advised him that he would know about their findings when the matter comes up for ruling today. Yesterday one of the daily newspapers, The Post, carried this report with an editorial comment and essentially manipulating the report. The same report is again appearing in today’s Post. This is before this report is tendered to you and in the mean time the primary object in the report has not had sight of this report and neither did we.”

Sangwa said the integrity of the court was in jeopardy and it was up to the court to decide.

“Ordinarily, the press is supposed to report what transpires in court and not vice versa. We believe that this is a serious matter and the way things are going, this trial is likely to turn into a huge circus and we therefore call upon this court to restore the integrity of this court,” he said. “Your honour, as the record will show, this is not the first time that we have made a complaint of this nature. We seek your guidance before we comment on the actual report. The integrity of this court is in jeopardy and it is up to this court to decide.”
Magistrate Chinyama said he had not seen the articles complained of in the paper as he was out of town.

“If what the defence has said is true, it’s likely that there are grounds of contempt. The press is not allowed to make comments on matters before the courts, “he said.

Magistrate Chinyama explained that there were two types of contempt namely contempt in the face of the court and contempt outside the court.

He said the conduct complained of was contempt outside court. “I would like to rebuke The Post, The Post should guard against making of news items before the court. Action can be taken against the newspaper in the manner explained,” he said.

On the trial before the court, Simeza lamented that Chiluba had suffered real injustice with the publications of the London High Court judgment and the various comments which have been made on it.

“It is our clients’ position that they have suffered real injustice, our clients feel they have suffered prejudice in the proceedings before you,” he said.

He produced copies of the Daily Mail with a headline ‘Chiluba found guilty’ and FTJ ruling cheers donors’ and The Post Newspaper headlined ‘Chiluba is a thief rules judge Smith’, ‘Chiluba should be remorseful for stealing from Zambians-KK and ‘Hichilema likens Chiluba to a monkey in a maize field’, where he complained about headlines and comments suggesting that his client was a thief.

“He has even been likened to a monkey, it will be our submission that this kind of polluted atmosphere does not guarantee the accused persons a free and fair trial. The presumption of innocence has totally been dismissed and rendered worthless,” Simeza complained.

Sangwa in addition said it was better to have the matter referred to the High Court to raise some constitutional issues and that the evidence submitted before the court was the same evidence before the London Court.

“We have another issue we need to raise, reference of the High Court in terms of Article 18 (2) whether this trial should go ahead. Proceedings started way back in 2002, but in 2004 the Attorney General commenced civil proceedings on the same facts. This judgment has been given the widest circulation in the press. All the daily newspapers serialised this judgment.

There have been commentaries made on these findings, people who have commented are the usual politicians, President Mwanawasa and representatives of western countries,” he said. “The evidence that has been submitted before this court is the same evidence before the London Court and the same witnesses appeared in the UK. The claim in the UK is conspiracy to defraud in the sum of US$ 25 million. Judge Smith found A1,A2 and A3 liable for these wrongs and a number of unpalatable statements have been made.

Given this publicity and comment on the London Judgment, it is not possible to have a free and fair trial. May I state something which I consider to be a problem, one of the problems is that judgment has been delivered and people have read. There are constitutional issues which should be raised before the High Court. They have been convicted in the eyes of the public. When one looks at the publications, the London Judgment will have more effect on the trial.

There is no way one can guarantee these people a fair trial. Because of the act of the state and publication, the court has been put under pressure to conclude the proceedings and this goes against Article 18. If the matter is referred to the High Court we want the proceedings to be stayed forever because we would be submitting that there is a mistrial (a trial that is invalid because a mistake such as an error in procedure has been made or a trial that does not come to a proper conclusion, for example, because the jury cannot agree on a verdict). The matter should be referred to High Court so that such issues can be raised.

But Magistrate Chinyama assured the defence lawyers that whatever decision he would arrive at would be based on the evidence before him and that the London Judgment had no bearing on the criminal matter before him.

“My conclusion is that I do not see sufficient reasons to refer this matter to the High Court on the basis of the judgment that has been passed. My judgment will be based on what has been given to me. It is not my concern what the public is going to say, my concern is that the prosecution brings the evidence,” said Magistrate Chinyama.

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