There’s no contempt in Prof Ndulo’s article, maintains M’membe

There’s no contempt in Prof Ndulo’s article, maintains M’membe
By Maluba Jere
Sun 13 Dec. 2009, 04:01 CAT

POST editor-in-chief Fred M'membe on Friday told the Lusaka magistrates’ court that people who had political scores to settle with him should not do so by bringing down the standing of the country's judiciary.

This is in a matter where M'membe and The Post are charged with contempt of court arising from an article entitled ‘The Chansa Kabwela Case: A Comedy of Errors’ authored by US based professor of law Muna Ndulo, which was published in the newspaper's edition of August 27, 2009.

Giving evidence-in-chief led by defence lawyer Remmy Mainza, M'membe said it was this type of comedy of errors that threatened the integrity of the country's courts of law.

M'membe maintained that there was nothing contemptuous about Prof Ndulo's article.

“Who is Fred M'membe for the nation to risk the judicial process' integrity in his pursuant? Comedy of errors! In no way did Prof Ndulo bring down the standing of our courts,” M'membe said. “Our courts are not kangaroo courts. They are professional courts run by professional officers. And moreover, our whole judicial process has to awaken to the realities of internet. The discourse about court proceedings now and in the future will be very difficult to halt in a narrow manner.”

M'membe told magistrate David Simusamba that he was not a lawless citizen but a law-abiding one who had respect for the men and women who administered justice in the country's courts of law.

“It is out of that respect that today I'm and continue to be a member of the legal profession in this country. I am defending myself in this matter, I am giving evidence in this matter not because I am scared of going to prison. I have been there before,” M'membe said. “I have been dragged to court unjustifiably several times before and our courts freed me from cases that have been purely schemed to have me incarcerated. At one time, they got tired and jailed me without trial using Parliament. Again they were embarrassed, their action was found to be illegal by our courts of law.”

M'membe told the court that he would not have had problems apologising if he had committed an offence, adding that he would not have wasted the court's time and resources by going ahead with trial in the matter.

“If I have done anything wrong, if in any way I have offended our courts, being a lawyer and a journalist who should know better, I deserve the maximum sentence for this charge,” M'membe said. “I am convinced that no offence of contempt was committed by myself or indeed The Post itself. I thank you for giving me my day in court. Those who brought me here thought they were fixing me and they will live to regret this.”

M'membe said although he was on study leave at the time the article in question was published, he too would have published it had he been at the office.
He explained that he went through the article by Prof Ndulo and weighed it from two angles.

“I weighed it from a journalist's point of view and from a legal point of view. My conclusion was that if I was at the office at the time the decision to publish the article was made, I would have published it. I would have done exactly what they did,” M'membe said. “As a lawyer and legal counsel for The Post, I would have advised them to go ahead because there is no contempt whatsoever in this article. Those who are seeing contempt in it are seeing a mirage. They are excused because human beings sometimes see what they want to see, even if it doesn't exist. There was indeed a comedy of errors and the conclusion of the Chansa Kabwela case has clearly highlighted that it was a comedy of errors.”

M'membe observed that chief resident magistrate Charles Kafunda's ruling in Kabwela's case clearly articulated issues and that was one of the best judgments delivered by the country's subordinate courts.
He told the court that Kabwela's case was a comedy of errors because it should not even have gone to court in the first place.
M'membe said the police were merely acting on orders from President Rupiah Banda.

“The comedy started with President Rupiah Banda himself at a press conference at State House. He gets emotionally charged on public television accusing The Post of being sick, morbid, queer and instructs the police to arrest us for those pictures,” M'membe said. “In one frame Mr Banda was a policeman, prosecutor and judge. The police swing into action without any proper investigations, without any proper analysis and effect arrests. The matter is taken to the DPP Director of Public Prosecutions who joins the circus, who joins the comedy and allows what should not have been allowed to proceed to court.

“In a clear abuse of the judicial process of our country, Chansa Kabwela is arrested and prosecuted. There is a problem here. If the process is unfair but correct, there is nothing our courts of law can do, there is nothing our honourable magistrates can do but to admit the matter. Accordingly, Chansa was prosecuted and acquitted accordingly on a matter that should not have entered our courts if not a comedy of errors.”

M'membe further said Prof Ndulo did not in any way ridicule the court, saying he was the highest criminal law authority in the country.

“Clearly your honour, this issue is not about one Fred M'membe trying to bring down the reputation of, the standing of our courts. It is an issue about those in control of the state trying to destroy one Fred M'membe but in the process are destroying the standing of our courts,” he said.

M'membe, who was asked to read parts of Prof Ndulo's article by the prosecutor, said he was not aware of any court order against The Post by magistrate Kafunda during Kabwela's trial.

“I have read the exhibits and there is no order restraining The Post but observations made by magistrate Kafunda. What constitutes an order of the court has a clear definition,” M'membe said. “It is not an arbitrary issue and it could not be because contempt of court is a very serious offence that can lead to an individual's loss of liberty.

“And moreover, your honour, what constitutes an order of the court was clearly defined by judge Wood in the case of Beatrice Nyambe v. Barclays Bank (Zambia) Limited reported in the Zambia Law Reports, Volume Two at page 195. An order of the court carries a criminal notice. There is nothing in this document, in the observations by magistrate Kafunda, that can be said in any way to constitute an order.”

M'membe said if mere court observations were turned into orders, many citizens could lose their liberties in a manner that could never be said to be fair or just.

He noted that even if one stretched magistrate Kafunda's observations, they would still not amount to a warning of the court.
“They were mere observations but very valid observations, very important observations for the administration of justice in our country,” M'membe said.

He testified that he saw Mwanza, prosecution witness number two, for the first time in court during his trial and that he never spoken to him or any other person from the police or state agencies tasked to “catch” him.

He explained that he was using the word “catch” because it was a phrase that was publicly uttered by the commander-in-chief of the Zambia Police Service, President Banda, when he was instructed the police to go after The Post over the matter of 'ponorgraphy' that led to these contempt proceedings.

“Professor Ndulo was very correct in describing the whole case as 'A Comedy of Errors. How do you lodge a compliant against a person you have not interviewed?” M'membe asked. “You are a policeman and prosecutor of 13 years, especially when the same prosecutor as he testified in this court attended the contempt proceedings before honourable Kafunda.”

He said it was difficult to think a prosecutor of 13 years could be so negligent in carrying out his duties.
M'membe told the court that his only reasonable conclusion was that Mwanza was blindly carrying out orders to “catch” the accused person.
At this point division prosecution officer (DPO) Frank Mumbuna objected, saying such sentiments should be left to the court and that M'membe was not capable to make opinions.

M'membe responded to Mumbuna's objection saying; “You brought me here to fix me. Let me have my day in court as they say and I will have it. This is the only place where I can get justice.”
But Mumbuna insisted that rules of procedure needed to be observed and it was not correct for M'membe to give his opinion even if it were his day in court.
Magistrate Simusamba overruled the objection, saying he would allow M'membe to say what he wanted provided he did not attack Mwanza's personality.

And during cross examination, magistrate Simusamba kept advising Mumbuna to ask questions clearly if he wanted to get the answers he expected from M'membe.
Magistrate Simusamba advised both M'membe and Mumbuna to avoid using unpalatable language in court during a heated cross examination.

This was after Mumbuna asked M'membe a question, which the latter said he had difficulties answering because it was nonsensical.
This angered Mumbuna who told the court that M'membe was insulting his intelligence and asked him to apologise.

But M'membe refused to apologise, forcing magistrate Simusamba to step in again and ask the prosecutor and the witness to calm down.
Mumbuna, who was emotional continued cross examining M'membe with the hope of ambushing him but the court reminded him that ambushing a witness was unacceptable although Mumbuna insisted that that was his way of cross examining.

Magistrate Simusamba again reminded Mumbuna that a witness answered questions during cross examination depending on how best they understood them.
He said it was the duty of the one cross examining to rephrase the question if he was not satisfied with the answer.

“I advised you that questions will be answered according to how they are understood,” he said. “If you listen to his M'membe answers, you will avoid arguing and we won't have to take so long.”
Asked by Mumbuna what evidence was there to prove that the police were directed to arrest and prosecute Kabwela, M'membe responded; “They arrested and prosecuted Kabwela and there is a ruling.”

But Mumbuna asked M'membe the same question, forcing magistrate Simusamba to state that Mumbuna seemed to have a different meaning of the word directive and also reminded him to avoid being confrontational.

Mumbuna then asked M'membe what evidence he had taken to court to show that President Banda directed the police to arrest Kabwela.

“That is irrelevant to this case. Why should I waste my time bringing in things irrelevant to my defence? We are not in Kabwela's case,” said M'membe.

When Mumbuna insisted, magistrate Simusamba agreed with M'membe that what he was asking for was irrelevant and wondered whether he wanted to cross examine a witness on his feelings.
Mumbuna then told the court that he should not be stopped from cross examining the accused on what he believed was raised in examination in chief and that he was abandoning his cross examination because he was being curtailed from doing that.
He also told the court that he wanted it to be on record that he had abandoned his cross examination under protest.

“I will not go further because the court has continuously blocked me from cross examining. I am not making progress, but I want it on record that I am abandoning my cross examination under protest,” Mumbuna said.

And M'membe responded: “You have just failed to cross examine me.”
The statement did not please magistrate Simusamba who told Mumbuna that he did not take kindly to such directives because everything in his court was on record.

M'membe's lawyer Mainza then observed that the defence was also being curtailed by the court on issues the court thought were irrelevant but they obliged.
He said Mumbuna was very senior and should not have stopped cross examining abruptly especially that the matter was a public hearing.

Mainza submitted that it was unacceptable to openly disagree with the court and advised Mumbuna to render an apology. However, Mumbuna did not apologise to the court for his conduct.
Magistrate Simusamba noted that since the commencement of trial in the matter, there had been a lot of emotions.

He said the court had inherent powers to punish offenders but that it was a learned court so it would try to restrain itself.
Magistrate Simusamba emphasized that officers of the court should not take advantage of the court and use it as a battle ground for emotions, saying they all owed a duty to justice.
The matter comes up on January 8, 14 and 15 for continued defence.