Maravi

Circulating ‘obscene’ pictures annoyed arresting officer

Circulating ‘obscene’ pictures annoyed arresting officer
Written by George Chellah and Mwala Kalaluka

THE arresting officer in the Chansa Kabwela case, Sharon Zulu today agreed that the High Court ruled out terms such as shock, disturbing and disgusting as a test for obscenity. And Zulu said she was annoyed with Kabwela for circulating the pictures of a woman in childbirth.

During continued hearing of the case where Post news editor Kabwela has been charged with one count of circulating obscene matters contrary to the laws of Zambia, defence lawyer Remmy Mainza referred Zulu to the case of Leco Vs The People reported in the 1975 Zambia law report at page 16 and requested her to read the specific passage at page 20.

After Zulu finished reading the passage, Mainza asked her whether she agreed that according to the passage she had just read to the court, the High Court ruled out things such as shock, disturbing and disgusting as a test for obscenity and Zulu replied: "That's what it says going by that passage."

Zulu told the court that investigations commence in so many ways.

"You have information either from the media or reports from an individual or from a complainant. Even the state can lay a complaint and you investigate," Zulu said.

Another defence lawyer, George Chisanga asked Zulu to tell the court who the complainant in the matter was.

Zulu explained that she commenced investigations in the matter following a complaint from the state.

When asked to reveal who brought the complaint on behalf of the state, Zulu said she started working on the matter following an article, which appeared in a publication she could not remember as well as instructions from her superiors.

Asked who the author of the article was, the date on which it was published and the content, Zulu said she could not remember the date and the author.

However, she said the article talked about the issue of circulating pictures, which were not supposed to be circulated.

"I am not sure whether it was The Post but it was in the paper," she said.

Chisanga asked Zulu whether the article that prompted the investigation was before court, she said she was not sure.

Asked to reveal the name of the superiors who sanctioned the investigation, Zulu said she could name the superior because she gets a lot of instructions but the directive was from "the senior most."

Earlier, Zulu denied interviewing anybody from Women for Change (WfC), Non-Governmental Organisations Coordinating Council (NGOCC) and the office of the Archbishop of Lusaka despite Kabwela having copied the letter containing the pictures to the above institutions.

When asked why she did not interview anybody from these institutions, Zulu said: "The documents she got from the three institutions were enough evidence...that was enough for me. I had enough evidence for me to go ahead with the case," said Zulu in apparent reference to the Ministry of Health, office of the Vice-President and office of the Secretary to the Cabinet.

She agreed that she did not interview Vice-President George Kunda.

When asked by Mainza whether he would be correct to say that Kabwela's letter and the pictures were not intended for every Jim and Jack in the country, Zulu answered: "You are right."

Zulu was then asked whether the letter to Vice-President Kunda explained why Kabwela authored it and in response she said: "the letter does explain why the author was writing the letter."

Asked whether she saw the pictures of the woman in childbirth in any newspaper or television station, Zulu said: "No Your Honour. I got the pictures from the recipients where they were circulated to...I saw those pictures not from the press but where they were circulated."

She agreed that the pictures were capable of disturbing anyone.

But when asked whether there was a charge in the Penal Code such as circulating obscene matter capable of annoying or disturbing anyone, Zulu responded: "No! Your Honour."

Zulu also agreed that it was prudent for her to proceed to Barclays Bank despite having Kabwela's signature on the warn and caution statement she signed at the police station.

"I have to gather evidence in all corners. After getting those documents this is why I submitted to the expert," she said.

Asked whether she submitted the letter in question, the warn and caution statement and the bank documents to the handwriting expert for examination, Zulu said she submitted everything apart from the warn and caution statement.

Chisanga then asked Zulu whether she was aware that President Rupiah Banda had held a press conference at which he classified the pictures as pornography and directed that the photographer be arrested, charged and prosecuted, Zulu replied: "I could have listened but there are so many issues. I can't remember everything. I'm not aware but I'm aware that there was a press conference."

And during her evidence in chief led by Lusaka division prosecution officer (DPO) Frank Mumbuna, Zulu said she was annoyed with what she saw in the pictures and whoever circulated them.

Zulu said she was really disturbed by the pictures.

She described an obscene matter as something forbidden and offensive.

"Something, which is not allowed like in our culture here in Zambia. We are Zambians we have got things that are not supposed to be exposed," she said. "The situation here, your honour. These are the two pictures that I am referring to. These are obscene matters. In the Zambian set up a woman giving birth needs privacy. You do not really have to expose such a situation like that."

She said according to the Zambian culture and the tonga tradition in particular, childbirth was private and was done in the presence of two or three persons and that nobody should be nearby.

"As a woman, not as a Tonga, I really felt insulted. I felt my integrity had been moved away from me," Zulu said. "I felt that a woman is nothing now. I was annoyed with what I saw and to whoever did the circulation of those pictures. I was annoyed with Chansa Kabwela for circulating those pictures."

Zulu said the pictures in question could affect the morals of people or the community that was to see them.

"Traditionally, it was like embarrassing the whole culture. I really do not know, I felt really my moral fibres were affected as a woman," she said.

Zulu said she commenced her investigations at the Office of the Vice-President where she got some documents and two pictures from Vice-President George Kunda's senior private secretary, Kenneth Ngosa.

Zulu said after gathering the relevant documents from the Office of the Vice-President, Ministry of Health and Cabinet Office, she extended her investigations to the banks with a view of finding out the person who wrote and signed on the two letters.

Zulu said before even going to the banks, she had summoned Kabwela and asked her about the letter but that Kabwela gave her a negative answer.

Zulu said she initially did not know which bank to search for Kabwela's account details but that she subsequently got information that the accused person had an account with Barclays Bank.

She said her probe at Barclays Bank was carried out on the strength of a search warrant and affidavit in support issued by the courts.

Zulu said since she was not a forensic expert she took the bank documents and the other documents to a handwriting expert to ascertain the person who wrote and signed on the letters.

Zulu said she made up her mind to warn and caution Kabwela on a charge of circulating obscene materials on the strength of the report of the handwriting expert.

"I made up my mind to arrest her with the subject offence. She was free and she gave her response that she is denying the charge," Zulu said.

Mainza objected to Zulu's production of a copy of the letter written by NGOCC board chairperson Marian Munyinda to The Post where she expressed shock at the means that the newspaper had used to draw attention to the authorities the health sector strike, by circulating the pictures in question.

Mainza said Zulu had not explained to the court the reasons she was producing a photocopy.

"It is trite law that only the best evidence ought to be tendered before the court and by best evidence I mean original documents," Mainza said. "This document does not qualify to be tendered before this honourable court on the reasons that I have given. So we object to the production of ID6."

But Mumbuna argued that the state was within the lawful procedure on production of documents before court and that there was no merit in the defence's objection.

"We submit, your worship, that your witness is the right person to produce this document because it has been in her custody as an investigating officer," Mumbuna said. "If during her investigation there was no original there can never be an original before this court today."

Lusaka chief resident magistrate Charles Kafunda in his ruling said he agreed with the defence that Zulu did not explain in what form she obtained the said document.

Kafunda asked the state, through Zulu, to clarify that aspect and that a fresh application on the production of the document be made.

Zulu said she got the letter as it was from the secretary in the office of the Secretary to the Cabinet Dr Joshua Kanganja.

Mumbuna then made another application to the court to allow Zulu tender the letter as part of her evidence, but Mainza again objected on grounds that the prosecution had not explained itself.

Mainza said in order to be consistent the defence would rely on their earlier grounds of objection to the production of the letter from Munyinda.

Chisanga said he underscored with emphasis that the production of the letter be objected.

Mumbuna said even if the document was to be excluded the state would not suffer any prejudice.

In his ruling on the arguments, Kafunda said he would use his discretion to admit Munyinda's letter into evidence but as secondary evidence.

During cross examination, Zulu was asked whether Kabwela's letter was intended to be an apology to the state or Munyinda to which she responded, "the letter was copied to all these people your honour."

The matter was adjourned to September 18, 2009 for continued hearing.

Labels: CHANSA KABWELA, COURTS, SHARON ZULU, THE POST

posted by MrK @ 3:59 AM