Saturday, August 29, 2009

Prof Ndulo’s article attracts contempt complaint

Prof Ndulo’s article attracts contempt complaint
Written by Mwala Kalaluka
Saturday, August 29, 2009 7:35:12 PM

UNITED States’ University of Cornell Professor of Law, Muna Ndulo's description of Post news editor Chansa Kabwela's 'pornography' case as a ‘Comedy of Errors’ yesterday compelled the state to ask the court to cite The Post editor for contempt.

This is in a matter where Kabwela has pleaded not guilty to one count of circulating obscene matters or things tending to corrupt public morals, contrary to section 177 1(b) of the Penal Code.

Particulars of the offence were that Kabwela, between June 1 and 10, 2009 in Lusaka did circulate two obscene photographs tending to corrupt public morals.

Before the matter came up for continued hearing before Lusaka chief resident magistrate Charles Kafunda, Lusaka Division prosecution officer, Frank Mumbuna, told the court that the state had an application.

"There is an application, your worship, bordering on repeated comments by The Post even when it's clear by the record before this honourable court that a similar concern was actually raised before this court," Mumbuna said with emphasis.

"We note, as state, with serious disappointment for The Post, in this case the editor, that despite this warning, The Post has continued violating, not only the law of the land but the warning given by this court."

Mumbuna then referred the court to The Post edition of August 27, 2009 in which an article authored by Prof Ndulo was published on page 20 entitled ‘The Chansa Kabwela Case: A Comedy of Errors’.

"We have been greatly touched by the following comment... 'that it is currently before the court is a result of errors of judgment on the part of the President and the police. The situation is exacerbated by the failure to stop the prosecution on the part of the Director of Public Prosecutions'," Mumbuna read. " 'No other case has damaged Zambia's image and standing as a tolerant and democratic country'."

Mumbuna quoted Prof Ndulo's comments that the average person, in Zambia while having no doubt being shocked and disgusted by the pictures, would not regard such pictures as being prurient.

"The author qualifies this by including, 'instead the pictures should lead to outrage and anger at those who were not making maximum effort to end the strike," he said. "The other serious comment states, 'the case cannot be supported by the definition of obscenity. The distribution of the pictures was limited to a small section of leaders and its objectives were not to corrupt morals'."

Mumbuna accused Prof Ndulo of passing judgment on behalf of the court.

"The article goes on to say Ms Chansa Kabwela, who is an accused before you, explained that the pictures were tearfully brought to the newspaper by the husband of the woman in the pictures in the hope that their publication might avert more tragedies," he said. "Qualification is given by this author."

Mumbuna said the article in contention gave directives to the court when the author stated that the Kabwela saga should be brought to a rapid resolution in order to end the unnecessary depletion of resources and the tarnishing of Zambia's image abroad.

He said the author stated that the case should be brought to a speedy resolution and end the pain felt by Zambians, as they endured the unnecessary court process.

"This case has tarnished Zambia's name abroad, according to the author of this article," Mumbuna said. "I note with interest that while this comment has been accepted by the editor of the paper, The Post newspaper, at page 19 at the end of the paper it says the editor reserves the right to edit letters for publication."

Mumbuna said The Post editor had the right not to publish Prof Ndulo's article, more so that the court had given directives to The Post editor and the newspaper to avoid commenting on matters that are before court.

"We refer this court to section 116 (1) (d)," he said. "We feel that the comment by The Post, through its editor, has violated the provisions of section 116 by committing contempt and The Post must show cause why it should not be rightly cited for contempt, especially after the court had given its position."

Mumbuna said the state felt that The Post's action undermined the integrity of the court.

"We also feel, your honour, that in any journalism field or profession the observance of the law comes within such training and for the editor of The Post newspaper to have closed his eyes to such realities would be an act of stubbornness for which the court must provide protection," he said. "The comment by The Post newspaper, which goes on to say 'as Zambians endure this unnecessary court process' is an act of indiscipline, which might jeopardise the proceedings of this trial, to which the court must protect the state."

Mumbuna said it would also be prudent for the court to protect its own integrity adding that the application was meant to protect both the state and the accused person.

"The comments and the cases put forward before this article goes to show assumption of authority by an unauthorised person or persons," he said.

Mumbuna argued that the title of the article belittled the court and those that were involved in the trial.

"Because the state has not been given adequate time to justify on the comments that have been written by The Post, we will prove to the world that in a case of obscene, intention is not necessary," Mumbuna said before magistrate Kafunda advised him to stick to the issue. "Judgment has been provided for the court and this article is capable of influencing the outcome of this case. We will be quick to say that the editor of the newspaper, The Post itself, must be cited for contempt under section 116, as provided by the law."

Defence lawyer Remmy Mainza said they could not comment on the application because they were not on record as being lawyers for The Post but for Kabwela.

He said they would need to get instructions from The Post if they were to comment on the matter.

Magistrate Kafunda said he would need to study the comment complained of and the submissions from the state before making his ruling on Monday August 31, 2009.

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posted by MrK @ 6:37 PM