Saturday, January 09, 2010
By Mwala Kalaluka
Sat 09 Jan. 2010, 04:00 CAT
LAWYERS defending Post editor Fred M’membe and the newspaper on a contempt of court charge yesterday disclosed that the company’s representative Reuben Phiri will not testify but rely on the evidence adduced by M’membe during his defence.
And a monitoring and evaluation manager at Project Concern International (PCI) Stephen Chanda, 35, yesterday testified that M’membe attended all the classes, tutorials and group discussions, as per requirement of the one-year Economic Policy Management course that they pursued together at the University of Zambia (UNZA) from 2008 to 2009.
When the matter came up before magistrate David Simusamba yesterday morning, the lawyer representing M’membe and The Post, Remmy Mainza said Phiri would not give evidence but would rely on M’membe’s evidence since M’membe was an employee of The Post.
“What we have elected to do is the company will rely on the evidence of DW1 because he is also an employee of the company,” Mainza said.
But Lusaka divisional prosecutions officer (DPO) Frank Mumbuna objected to the procedure that Mainza was employing on the basis that there were two accused persons in the dock.
“There is no law anywhere where an accused person can give evidence and cover as a state witness the second accused person,” he said. “The only procedure that is alive is that either accused number two remains silent and calls no witness.”
Mumbuna said the procedure that the defence was trying to adapt was not supported by any piece of legislation and that the prosecution would therefore not allow it.
However, Mainza responded that he recalls that when M’membe was giving his evidence-in-chief, there were some aspects that touched on the second accused but there was no objection from the state then.
“And that evidence as we speak right now is actually part of the record,” he argued. “It is too late for the state to object to evidence that is already part of the record…The objection has no basis at all and ought to have been raised timely.”
In his ruling on the matter, magistrate Simusamba said the correct procedure is that The Post would be deemed to have exercised its right to remain silent.
Magistrate Simusamba said at the last sitting, The Post (A2) had indicated that they would call the same five witnesses as the first accused person, M’membe.
“Today he has elected to remain silent. It is his right,” he said.
He said although M’membe’s evidence could not be repeated in respect of The Post, the same would be evaluated in terms of admissibility subsequently.
“For now the record is amended to reflect that A2 elects to remain silent and call the five witnesses as A1,” magistrate Simusamba ruled.
And during examination-in-chief led by Mainza, Chanda said between October 2008 and September last year he was undertaking a Masters of Art course in Economic Policy Management at UNZA’s School of Mines with M’membe.
Chanda said the students who took part in the course were required to take study leave from their places of work and avoid any activities that would detract them from the study programme since the funding agencies demanded that the students undertaking the programme commit to go through the study on a full-time basis.
He said failure to adhere to the regulations would mean exclusion from the first-of-its-kind study programme.
Chanda said he took study leave from his employer but this was done verbally.
He said as the student representative and coordinator for the study group to which M’membe belonged, he was aware that M’membe attended all the classes, tutorials, seminars and study groups within the programme.
During cross-examination by Mumbuna, Chanda said he could not account for M’membe’s activities after around midnight when they stopped their study group session.
He said he did not know the position that M’membe held at The Post because he only had an academic interaction with him.
Chanda said the attendance register was proof of someone’s rate of commitment to the course. The court then set January 14 and 15 this year as dates for continuation of defence.