Monday, November 16, 2009

Appeal against ruling, Post challenges President Banda

Appeal against ruling, Post challenges President Banda
By Mwala Kalaluka
Mon 16 Nov. 2009, 16:30 CAT

LUSAKA chief resident magistrate Charles Kafunda has acquitted Post news editor Chansa Kabwela of the case in which she was charged with circulating obscene materials or things contrary to the law.

And Post editor-in-chief Fred M’membe has challenged President Rupiah Banda to appeal magistrate Kafunda’s acquittal of Kabwela all the way up to the Supreme Court.

This is in a case where Kabwela was charged with one count of circulating two pictures of a woman in ‘labour’ contrary to section 177 1 (b) of the Penal Code chapter 87 of the Laws of Zambia.

Particulars of the offence were that Kabwela allegedly circulated the pictures between June 1 and 10, 2009 in Lusaka and the prosecution premised their case on the notion that the images tended to corrupt morals.

Delivering ruling in a parked courtroom at around 14:00 hours today (November 16, 2009) magistrate Kafunda said the photographs in question were actually meant to address matters of national interest in the health sector.

Magistrate Kafunda said there were two ingredients that had to be considered in determining whether Kabwela could be placed on her defence or not.

Magistrate Kafunda said for the offence at hand to be made out it was necessary to establish whether Kabwela did circulate the photographs and also that they corrupted the morals of the people they were exposed to.

Magistrate Kafunda said it was not in dispute that Kabwela circulated the photographs.

“Therefore, I do not wish to belabour the issue of circulation, which in my view is a settled matter and has not been contested by the defence,” he said.

He said the photographs were circulated and exposed to PWI, PW3, PW5, PW6 and PW10.
But he said in determining whether there had been any prima facie case made against Kabwela, the second and last ingredient of whether they tended to corrupt the morals of those the photographs were exposed to had to be considered.

Magistrate Kafunda said he had recourse to look at the photographs themselves and what they portrayed and this was further buttressed by some of the prosecution.

He said one of the pictures showed a woman in labour with a ‘dead’ child coming legs first.

“From the photographs, the mother’s vagina is visible,” magistrate Kafunda said.

Magistrate Kafunda said according to the witnesses they were shocked and angered by the pictures because to them the process of giving birth was a sacred one according to the Zambian culture.

Magistrate Kafunda said according to the prosecution witnesses the public nature in which the photographs were circulated were in violation of the local customs and an affront to the women’s standing.

Magistrate Kafunda said according to one of the female witnesses, Nawina Hagwagwa she was shocked by the pictures to the extent that she retorted that ‘ki mitolo’, which means taboo in Silozi.

He noted that according to some of the prosecution witnesses the violation of customs in Zambia was a corruption of morals and so was the demeaning of women.

“Every society, including Zambia, has its own tenets of customs that guide what is wrong and what is right,” magistrate Kafunda said.

But magistrate Kafunda said it does not follow however, that conduct that may depart from such morals may be obscene.

He agreed that the test of obscenity went beyond such considerations in that that alleged to be obscene must tend to corrupt morals.

“I have had recourse to the photographs in question, I do sympathise with the witnesses as to the effect the photographs generated in them but unfortunately that in itself does not amount to corruption of morals,” magistrate Kafunda said. “I saw no evidence whatsoever…”

Magistrate Kafunda said having considered the evidence he had found that the prosecution had failed to prove the obscenity and corruption of morals ingredient.

He said against the above background it would be prejudicial for the court to place Kabwela on her defence.

“This trial must therefore terminate,” magistrate Kafunda said.

He said this was so because no case had been made out against Kabwela by the prosecution and that he was therefore accordingly acquitting Kabwela and dismissing the case against her under Section 206 of the Criminal Procedure Code (CPC).

“The state has right to appeal,” said magistrate Kafunda.

Following the court’s pronouncement the audience, who included family members, media workers, members of the public, politicians and activists filed out of the courtroom in a celebratory mood.

One of Kabwela’s lawyers, Remmy Mainza, told journalists outside the courtroom that it was clear from the onset that the case was not one that should have seen the inside of the courtroom.

“I do not know the motive of the prosecution,” he said. “The law was on our side. I was confident and that is why we put up a good fight based on the fact that the law was on our side.”

Mainza said the prosecution did put up a good fight only that the facts were against them.

In a post-ruling interview, Kabwela said the outcome of the case was not for herself or for the Post but for the poor woman who was in the ‘labour’ pictures and for those other people that suffered during the health workers’ strike.

“I have been vindicated. I have always said that whatever I did was purely out of good will on behalf of the Post,” Kabwela said.

“I think I can’t find the right words to use at the moment. I am happy that the court has vindicated me. Whatever I did on behalf of the newspaper was not in anyway meant to discredit anyone.

The letter to the Vice-President (George Kunda) was very clear. I was merely trying to bring to attention the situation in the hospitals.”

Kabwela said the fact that some people had interpreted her decision as a circulation of pornography was something she would live with because she could not understand such perceptions arising from a sad picture.

Kabwela said the Post newspaper and herself were able to face the case following the immense support they got from the members of the public.

And M’membe challenged President Banda to appeal his ‘pornography’ case all the way to the Supreme Court.

“There are so many things to say about that acquittal of Chansa. This was a case started by President Banda against us. He publicly accused us of pornography and called us all sorts of names. He insulted us of being sick, morbid and peculiar,” M’membe said in an interview.”

“Everyone can remember how charged President Banda was about this issue and instructed the police to arrest and prosecute us. Our innocence has been proved. Mr. Banda’s allegations against us could not even go beyond case to answer.”

“We challenge him to appeal magistrate Kafunda’s ruling. We won’t ask for what he dif with his friend Frederick Chiluba. We do not fear an appeal like them. So we urge them to appeal all the way up to the Supreme Court. As I said there is a lot to say and we will say it at length in the coming days.”

During a press briefing at State House President Banda made some comments on the ‘labour’ pictures and below is a verbatim.

Question: Good morning Your Excellency, my name is Costa Mwansa from MUVI-TV. In your address Sir you did mention that you have the powers to appoint and relieve people of their duties without the consent of either people from the opposition or even students.

My question is on the fact that you were presented with the Dennis Chirwa tribunal report of which the nation did expect you to comment on the findings but there were concerns that you kept rather silent on the tribunal findings and were very quick to reappoint Honourable Dora Siliya as Minister of Education in very short period of time after the case was quashed by the High Court.

President Banda: (after talking about the Dennis Chirwa led tribunal) … I like your question because perhaps this will help me to explain that she (Dora Siliya) was at ZIBAC not for the pleasure of sitting next to me which she didn't. There were many witnesses.

It was like we have got many diplomats who were there with us from all over the world, from all the countries that are accredited to Zambia.

They know that Dora Siliya was sitting at the back and you know I’m so big so I don't turn around I didn't even have the pleasure of looking at her. I saw her in the paper sitting next to me, this manipulation, this is lies, everybody knows that The Post lied.

Dora Siliya did not sit behind to me. Next to me was sitting Honourable minister Mutati, minister of commerce, on my left was sitting Dr Mwanza and the other day was sitting the treasury...the deputy secretary to Cabinet Evans Chibiliti.

At no time did Dora Siliya sit next to me. In any case what's wrong with Dora Siliya sitting next to me? What are you trying to imply?

Just because you are morbid and peculiar you sent photographers to go and take pictures of your mother naked, shame on you!

And I hope that there are laws in this country to stop the young men from taking pornography. I hope those responsible for the law of this country will pursue this matter.

Shame on you photographer who took the pictures of our mothers naked. I couldn't look at it, when I looked at it I threw it away and you wanted to be sending it means that you are sick yourself and don't pretend to be worried about the people in the hospital.

You are the same people who are saying the nurses should continue to go on strike, the doctors. Who is going to look after our sick? This is not fair for us to be subjected to trash and call it journalism.

Wamene uyo mwana...(that same child) who took that picture of the mother I wish him good luck! You cannot go and take pictures of a woman who is my mother, all of us are from women, and send it round without shame.
How do you think? I would be ashamed to show it even to another person.

At this point President Banda's press aid Dickson Jere interjected.

Thank you, Your Excellency...

President Banda: Don't stop me I want this to stop. In this country that's why I agree with the mothers whoever has come to introduce into our country journalism of showing naked pictures of mothers and children is a sick person and he should be watched and arrested if caught up with this. This is something unacceptable.

Jere: I think most of you may not know the background where the President is talking's that one newspaper has been distributing these pictures to different organisations showing our mothers giving birth at UTH.

And some of the pictures have been sent to us and I think your guess is as good as mine, which that newspaper is. I will take more questions.

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