Magistrate Kafunda refuses to recuse himself in President Mwanawasa's

Magistrate Kafunda refuses to recuse himself in President Mwanawasa's
By Noel Sichalwe
Thursday April 17, 2008 [04:00]

LUSAKA principal resident magistrate Charles Kafunda yesterday refused to recuse himself in the case where Patriotic Front president Michael Sata and two others are charged with defamation of President Levy Mwanawasa. This is a matter in which Sata, his vice-president Guy Scott and a police officer Clement Andeleki have been charged with defamation of the President following the forged letter dated January 14, 2006, which Andeleki allegedly gave to Sata who in return passed it to The Post for publication.

Sata sent the letter to The Post, purporting that President Mwanawasa ordered the arrest of PF cadres who waved at him on his way to the official opening of Parliament in January 2006.

When the matter came up for plea yesterday, defence lawyers comprising Robert Simeza, Bonaventure Mutale, Mathew Pikiti, Edgar Lungu and Wynter Kabimba applied to hear the preliminary application in chambers.

While in chambers, the defence raised two preliminary issues with the first one being that the court should suspend hearing of the matter while awaiting the determination of the appeal in the Supreme Court arising from the same case.

The appeal related to the refusal by then trial magistrate Edward Musona to refer the matter to the High Court to determine constitutional issues.

The second issue was that magistrate Kafunda should recuse himself from handling the matter because he had earlier convicted Andeleki for contempt of court and further testified against him at a tribunal convened by the Zambia Institute of Advanced Legal Education (ZIALE).

Pikiti argued that magistrate Kafunda should recuse himself in respect of proceedings against Andeleki because he had earlier convicted Andeleki for contempt of court in another matter.

He contended that magistrate Kafunda facilitated the proceedings against Andeleki by testifying against him at a tribunal thereby destroying his life.

Pikiti urged magistrate Kafunda to recuse himself so that justice could prevail in the matter. The state, however did not reply to the application.

The application was also supported by Mutale and Professor Mvunga.
In his ruling, magistrate Kafunda said he had thought about the issues and that Pikiti was fully aware of the matter with regard to Andeleki's contempt case.

Magistrate Kafunda said the record was clear that Andeleki was a learner student at ZIALE when he placed himself on record as defence counsel in a criminal matter.

He said it was clear that Andeleki had committed contempt of court by pretending to be a lawyer when he was not. He said Andeleki even failed to justify his conduct and instead apologized for what he had done.

"Accused number three (Andeleki) was cautioned and was ordered to leave the court but he had made for about three times where he was defending a criminal matter," magistrate Kafunda said.

He took great exception at what he regarded as the misrepresentation of facts by Pikiti. He said the tribunal at ZIALE was merely meant to learn what had happened with regard to Andeleki's conduct where he gave an objective position.

He said it was regrettable that Pikiti could paddle such falsehood against the court and that as an officer of the court, he was supposed to maintain and protect the integrity of the court.

Magistrate Kafunda said Pikiti had just misled Prof Mvunga when he supported the argument.

"Should he (Pikiti) depart from that duty and embark on an acrimonious and disrespectful route, this court will be compelled to exercise its full jurisdiction to discipline every officer of the court especially when it is clear that they intentionally want to bring this court into ridicule and contempt," said magistrate Kafunda.

"The court will therefore, have the said application dismissed."