M’membe, The Post appeal

M’membe, The Post appeal
By Mwala Kalaluka
Fri 04 June 2010, 04:02 CAT

POST editor Fred M’membe and The Post yesterday filed a seven-ground notice of appeal before the Lusaka High Court over their conviction on a contempt charge by Lusaka magistrate David Simusamba.

According to a notice of appeal against conviction and sentence in line with section 323 (1) of the Criminal Procedure Code Cap 88 of the laws of Zambia, filed by defence lawyers Remmy Chisanga and George Chisanga, M’membe and The Post were appealing against the conviction.

“Take notice that we, Fred M’membe and Post Newspapers Limited appeal to the High Court against the conviction by the Subordinate Court of the First Class sitting in its original jurisdiction at Lusaka on the 2nd day of June, 2010,” the appellants stated. “…Our appeal is against the conviction on the grounds herein after set forth.”

M’membe and The Post contend that magistrate Simusamba misdirected himself in law and in fact when faced with two possibilities on the question of M’membe’s alibi, he resolved the doubt in favour of the prosecution thereby reversing the golden rule of criminal procedure that the prosecution ought to prove its case beyond reasonable doubt. They also contend that magistrate Simusamba misdirected himself in law and in fact when he dismissed M’membe’s alibi in the face of the dereliction of duty on the part of the state.

The third ground of appeal states that magistrate Simusamba erred in law when he held that M’membe could have been in control of the publication even assuming that he was not in the office at the material time by means of modern technology or through delegation of duty to his subordinates.

“…thereby making a finding of fact based on assumption unsupported by the evidence before him,” the appelants stated, adding that magistrate Simusamba further misdirected himself in law and in fact when he held that the article was contemptuous on the basis that it discussed legal authorities and offered an opinion on how the court should decide the matter when in fact the article never offered any such opinion to the court.

They further stated that having found as a fact that the article complained of was not contemptuous to render an opinion on the conduct of the Republican President, Police and the Director of Public Prosecutions in the context of the proceedings in the Chansa Kabwela case, magistrate Simusamba erred in law when he went to find that the article was contemptuous.

The appellants also argued that magistrate Simusamba misdirected himself in law and fact when he failed to evaluate the evidence of alibi presented before him by M’membe and his witnesses. “The learned trial magistrate misdirected himself in law when he dismissed M’membe’s’s evidence that he was on leave without giving reason for such a finding.”

M’membe and The Post were found guilty of contempt of court arising from the publication on August 27, 2009 of an article entitled, ‘The Chansa Kabwela case: A comedy of errors’, that was authored by US-based Zambian law professor Muna Ndulo.