Post editor pleads not guilty to contempt charge

COMMENT - Fred M'membe is 50? Wow.

Post editor pleads not guilty to contempt charge
Written by Mwala Kalaluka
Wednesday, October 14, 2009 7:13:48 PM

POST editor-in-chief Fred M’membe has pleaded not guilty to one count of contempt of court before Lusaka magistrate David Simusamba. And Post deputy managing director Sam Mujuda has been dropped from the contempt case but the state would reactivate the same charge against him once he stepped back on Zambian soil.

M’membe, 50, a journalist by occupation, and the Post Newspapers Limited have been charged with contempt of court following the publication of an article on August 27, 2009 entitled Chansa Kabwela case: a comedy of errors which they said touched on the case of the people versus Chansa Kabwela, knowing very well that it was a subject of court proceedings.

When the matter came up before the court Wednesday morning, Lusaka division prosecution officer Frank Mumbuna raised an application on the fact that there was only one accused person in the dock when the persons charged were three.

He said the charged persons were M’membe, Mujuda and the Post Newspapers Limited. Mumbuna said section 356 of the Criminal Procedure Code (CPC) was very clear on the procedure to be adopted when a company or corporation had been cited for contempt. He said this section talked about a representative being served the summons and appearing before the court.

“This representative can be appointed by the management of a particular company. It is interesting to note that before you there is only one accused person, Mr Fred M’membe,” Mumbuna said.

Mumbuna said there had been no excuse from the defence as to the whereabouts of the company representative.

“By that your honour, through the company representative, this court could have been addressed by such a person as to the whereabouts of Mr Sam Mujuda,” he said. “We pray that as a matter of procedure there should be an explanation from particularly the defence counsels that are representing the Post Newspaper why this representative is not before this court. With due respect we submit that keeping silent is not enough for the defence because the law compels them to give an explanation.”

Mumbuna noted with interest that the representative of the Post Newspapers had signed on behalf of the company and yet decided not to come to court.

One of M’membe’s lawyers Remmy Mainza said the defence were amazed that they were being asked to account for the absence of an accused person.

Mainza said on October 8, 2009 the court issued summons to the three accused persons and that he was reliably informed that the clerk of court was given the task of effecting service on all the accused persons.

“We can confirm that Mr Fred M’membe was served with the summon hence our appearance this morning. The third accused the Post Newspapers we also confirm that they were served and we have placed ourselves on record as representing the said accused,” he said. “We can’t account for the absence of the second accused person because we were not entrusted with the responsibility of effecting service on Sam Mujuda.”

Mainza said the service of summons on M’membe was not the same as service on Mujuda and that the same applied to service of summons on the Post Newspapers.

Mainza said the onus of ensuring that an accused person appears before the court was on the person who effected summons and that until such an officer confirmed to the court that he or she complied with the law, the court should decline making any order or orders against the accused given the absence of evidence.

Another defence lawyer, George Chisanga, said the absence of a company representative should not cause any problems for the court.

Chisanga said section 365 of the CPC that Mumbuna had cited in his application was not a mandatory provision but a permissible as noted in the usage of the word may as opposed to shall.

Chisanga said subsection six of section 365 actually gave the court power that it could proceed to enter a plea of not guilty if a representative of an accused operation failed to appear in court.

“I will earnestly urge this court to consider that the state by raising this issue before you now are carefully circumventing their obligation to ensure the attendance before you of the three people who stand accused of contempt of court,” he said. “On behalf of the accused before this honourable court, we were in fact expecting the state to explain to the court how we can proceed today in the absence of one of the accused persons?”

Chisanga also urged the court not to make any pronouncements on the issues that had been raised by the prosecution.

But Mumbuna said the two defence counsels had admitted that they were representing both M’membe and the Post Newspapers but they had lamentably failed to furnish the court with information on the whereabouts of the Post Newspapers or its representative.

“What we are saying, your honour, is that where is The Post before this court?” Mumbuna asked. “It is trite law that when one is represented he speaks through his representative on all legal matters.”

However, Chisanga said if counsel were to be compelled to provide the kind of information that Mumbuna was asking the defence to supply to the court, it would be tantamount to adducing evidence from the bar.

And ruling on the application following a close to one hour adjournment, magistrate Simusamba, said he had established that the service of summons on the accused persons was done in line with the legal provisions.

Magistrate Simusamba said in line with section 98 (1) of the CPC he was restraining himself from granting the application regarding the absence of Mujuda in the absence of an affidavit by the person who serviced the summon.

Magistrate Simusamba ruled that since all the three accused persons were separate entities he could not compel any of them to reveal the whereabouts of their co-accused.

He said therefore the application by the state requesting the defence to reveal the whereabouts of an accused person must fail.

Mumbuna then stood and made an application that accused number two, Mujuda, be dropped from the proceedings but that the state was aware that Mujuda was a Zambian and shall one day be in the country.

M’membe then pleaded not guilty and the court entered a plea of not guilty in respect of the Post Newspapers Limited in the absence of a company representative.

Magistrate Simusamba then set October 29 and 30, 2009 as the dates for commencement of trial and the state said they would call four witnesses.

Veteran politician Simon Zukas, PF leader Michael Sata, musician Maiko Zulu, Post Newspapers employees and other stakeholders attended the court hearing that took most part of the morning.