M’membe tells court he’ll show that Rupiah is corrupt, a liar

M’membe tells court he’ll show that Rupiah is corrupt, a liar
By Maluba Jere
Tue 26 July 2011, 14:00 CAT

POST editor Fred M'membe has told the Lusaka High Court that he will produce evidence to show that President Rupiah Banda is corrupt and a liar who even lied about the origins of one of his parents.

And judge Charles Kajimanga has granted leave to M’membe to appeal against his refusal to have President Banda’s lawyer Christopher Mundia cross-examined on the affidavit for leave to commence contempt proceedings which he swore.

M'membe opened his defence with an opening statement through one of his lawyers, Mutembo Nchito.

During the statement which was characterised by objections from the plaintiff’s legal team, Mutembo said where President Banda was being accused of being corrupt, it was incumbent upon the defendant to prove the allegations.

Mutembo said M'membe would call a number of witnesses to prove his innocence in the case where President Banda has instituted contempt proceedings against him.

Mutembo told the court that the leave obtained and the affidavit in support of the motion for committal had not demonstrated which words in particular had given rise to the allegations against M'membe.

He said M'membe had not been afforded the opportunity to know the exact words he uttered or published which were contemptuous, saying the only thing that had been done was to reproduce whole newspaper articles.

He said it was the defence's intention to attack the very foundation of the contempt proceedings by demonstrating that the leave granted was not properly obtained.

Mutembo said it was M'membe’s intention to show that President Banda was as he had been described in the articles titled, among others ‘Rupiah Banda is a shameless liar’.

“Our instructions are to show that the plaintiff President Banda can be described in those terms and evidence will be called to demonstrate that he lied about when he joined the MMD and the origins of at least one of his parents,” submitted Nchito.

Mutembo then said the defence had served a subpoeana on Mundia in view of the fact that he seemed to know something about the case before court to the extent that he deposed to it and asked him to take the witness stand.

But Mundia objected, saying the subpoeana was issued in the court's registry on July 8 this year but that it was only given to him yesterday in court when the rules require that such a witness is served at least four days before the date of hearing.

He also said the ruling delivered earlier which dismissed M'membe's application to cross-examine him had superseded the subpoeana.

“Can this document which was irregularly served supersede the court's ruling?” Mundia asked. “It is my submission that the subpoena is invalid and devoid of any law whatsoever.”

Mundia said for the defence to try and circumvent an earlier ruling by the court was an abuse of court process.

Sunday Nkonde, who has been retained by President Banda to act as co-advocate in the case, said the subpoena was irregular and hoped it was not meant to delay the course of justice.

But M'membe's other lawyer, Nchima Nchito, argued that the record would show that at the last hearing of the matter on July 8 this year, he brought to the court's attention the existence of the subpoeana.

Nchima said the ruling of the court was on cross-examining Mundia while the subpoeana related to him being called as a witness for the defence.

He submitted further that although the results at the end may be somewhat similar, the rules applied and procedure were totally distinct, adding that one could not stop the other.

Nchima said M’membe enjoyed a constitutional right to call such witnesses as he believed would help him prove his innocence.

He urged judge Kajimanga to allow Mundia take the witness stand, saying the existence of the subpoena was well known at the hearing of July 8, 2011.

George Chisanga, another defence lawyer, also submitted that it would have been highly inappropriate for the defence to serve the subpoeana on Mundia at the time of the recourse to a different procedure.

Chisanga said the defendant could not have contemplated yesterday’s ruling, saying the due process required that one process is exhausted before implementing an alternative one.

Chisanga said non-compliance with the regulatory procedure did not amount to an injustice, saying it was open to the court to utilise its discretion and allow the proceedings to go ahead.

Mutembo added that what the issue was about was whether the alleged contemnor was allowed the full facilities of a judicial process to defend himself.

He said the Zambian system did not allow one party to enjoy more advantages than the other.

Mutembo said the subpoeana was one of those instruments in the legal arsenal utilised to ensure that an accused person is afforded a fair trial.

“That is why he M'membe sought assurance of this court that he be allowed to subpoena such witnesses, and State Counsel Mundia is one such witness and we pray that the subpoena be respected,” Mutembo said. “There is no legal basis provided for invalidating the subpoena.”

But Nkonde argued that the subpoena was in breach of the Order 38 of the Rules of the Supreme Court, saying to allow the defence what they sought would not advance the course of justice.

He said there was no reasonable explanation by the defence for serving the subpoeana on the day of the hearing after a ruling.

Ruling on the matter, judge Kajimanga said the subpoeana had been overtaken by the ruling he delivered earlier.

He said Mundia could not testify as a subpoenaed witness and ordered that M'membe should proceed to open his defence or call witnesses.

At that point, Mutembo applied for leave to appeal against the two rulings but indicated that the defence intended to proceed with matter.

Judge Kajimanga granted leave to the defence to appeal against his rulings.

Mutembo then called as the defence's first witness the Master of the Supreme Court but before she could take oath, Nkonde told the court that a perusal of the subpoeana for the Master of the Supreme Court showed that it was highly defective.

Mundia also added that the subpoeana was irregular and that it should be rejected by the court until the rules are complied with.

But Mutembo said the defence was being accused of delaying the matter when it was very clear it was the plaintiff's team that was doing so.

He said the objection was frivolous and intended to delay the process as evidenced by the many objections since the case came up in the morning.

"I can sense some discomfort because why are they interfering with the calling of my witnesses? The fact is that the witness is here, she has not given them instructions that they should represent her. I am entitled to call witnesses even by merely calling them. This is a quasi-criminal procedure. Let’s deal with substantive issues. The objection is intended to delay," said Mutembo, attracting opposition from Mundia.

Mutembo however continued submitting that the manner of bringing witnesses to court varies. "It could be even coersive."

Mundia insisted on responding saying Mutembo was a junior lawyer to which Mutembo responded: "of twenty years" and Mundia replied "me it’s more than 30 years."

Mutembo then said there was no need to get worried as everyone would enjoy the case.

Judge Kajimanga then stood down the matter to the afternoon for a ruling.

When the matter came up in the afternoon, the Solicitor General Mubanga Kondolo was in attendance and made a chamber application to adjourn the proceedings to Thursday July 28.

Earlier, Mundia complained that M’membe had been issuing unpalatable statements against President Banda saying that he would teach President Banda a lesson he will never forget the way he had done with the late Frederick Chiluba.

He told judge Kajimanga that just before the court sat, M'membe issued similar statements at the last hearing before court sat and that he had done the same yesterday morning that he would teach President Banda and his agents that to govern is not to abuse power.

“My Lord, these words should never be uttered within the precincts of the court and I do not know the substance of those utterances. Foul language should not be the monopoly of M’membe alone. It is highly unnecessary that my client should be intimidated through me, so that I can tell my client. If that is done savagely, it will be met with thuggery,” threatened Mundia.

Mundia said if President Banda was a type of person who would abuse his power, he would have ensured criminal action against M'membe and his newspaper but that he had chosen to litigate.

Mundia said he did not believe that the contempt proceedings should be held under intimidations.

“These rantings if they are not stopped, one can never ever think that the proceedings can be conducted peacefully and I stand here saying I can never be intimidated by M'membe,” he said. “As an agent, I am simply doing my job as a professional lawyer. I have taken the liberty to bring this before the court's attention because this is the second time the alleged contemnor is uttering such and he is doing so in the presence of his lawyers.”

In response, Mutembo said if Mundia felt disturbed by what M'membe might have said, he would have raised the concerns with the defence, who would have taken his counsel on the matter.

He said it was instructive that Mundia said he did not feel intimidated by M'membe which he said was as it should be.

Mutembo said M'membe should be free to converse with his counsel and that if the other side happens to overhear his views, they could at least express their concern with the defence.

He said in future, it would be helpful if Mundia raised such a concern with the defence so that the parties do not take up the court's time.

Ruling on the matter, judge Kajimanga warned M'membe to desist from issuing such statements if the concerns as raised by Mundia were true.

After making that ruling, judge Kajimanga also dismissed an earlier application by M'membe that sought to cross-examine Mundia on the affidavit for leave to commence contempt proceedings.
He said Mundia was not party to the action before court, saying if he was to be cross-examined, his evidence would have little evidential value.

“For the foregoing reasons I have come to the ineluctable conclusion that the alleged contemnor has not made out a good case to warrant the cross-examination of Mr Mundia, SC. This application is accordingly dismissed for lack of merit. The upshot of this conclusion is that the alleged contemnor should now open his defence,” ruled judge Kajimanga.