AG directs DPP to oppose M'membe's conviction

AG directs DPP to oppose M'membe's conviction
By Maluba Jere
Fri 02 Mar. 2012, 11:00 CAT

ATTORNEY General Mumba Malila has directed the Director of Public Prosecutions not to support the conviction of Post editor Fred M'membe.

Submissions filed in the High Court state that the prosecutors requested the Attorney General to provide an opinion on public policy considerations, if any, on the prosecution of The Post editor and the intended prosecution of US-based Zambian law Professor Muna Ndulo.

According to the submissions, the request was made as a reference to the Attorney General's office in terms of the proviso to Article 56(7) of the Constitution, which reads: "Provided that when the exercise of any such power in any case may, in the judgment of the Director of Public Prosecutions involve general considerations of public policy, the Director of Public Prosecutions shall bring the case to the notice of the Attorney General and shall in the exercise of his powers in relation to that case, act in accordance with any directions of the Attorney General".

This is in a case where M'membe appealed against his conviction for contempt of court arising from an article authored by Prof Ndulo titled "The Chansa Kabwela case: A comedy of Errors" published on August 27, 2009.

According to the state submissions, the Attorney General was of the view that M'membe's prosecution was a perversion of justice and that it should not have been undertaken in the first place.

The submissions state that Malila's opinion on the matter was that the conviction in the circumstances was equally a travesty of justice and directed that the conviction should not be supported.

Malila stated that the prosecution of M'membe and the intended prosecution of Prof Ndulo for contempt were undertaken under an exceptional background.

"I have studied the circumstances that gave rise to this prosecution. As I can ascertain, The Post Newspaper published the article entitled "The Chansa Kabwela Case: a comedy of errors in their Newspaper number 4697 of 27th August 2009...The President, according to the article should never have issued a directive to the police," said Malila.

"The police on the other hand should have exercised professionalism and independence, but they did not; the DPP should have stepped in to redeem the situation, he too failed."

He further said considering the political circumstances of the time and the totality of what transpired, the prosecution of Kabwela was not objectively and professionally undertaken as evidenced by the result of the prosecution which was an acquittal.

Malila added that in many ways, the author of the article complained of was vindicated and that its publication was justified saying the criticism was valid and apt.

He stated that M'membe's prosecution and subsequent conviction was driven by undisguised political interests.

"The effect of the prosecution of those perceived to be criticising injustice is to stifle the constitutionally protected freedom of expression," he said.

"Some prosecutions, including that of Mr Fred M'membe who appeared to be an ardent critic of the government of that time, appeared to have been driven more by undisguised political interests and the need to dole out political patronage rather than achieving justice. This was an affront to the rule of law and is consequently against public policy."

The state in their submissions said it was clear from the Attorney General's opinion that his view was that the conviction of the appellants should not be sustained.

"In the premise, pursuant to Article 56(7) of the Constitution aforesaid, we therefore abide by the Attorney General's direction and do not support the conviction," read the submissions in part.

In 2010, senior resident magistrate David Simusamba sentenced M'membe to four months imprisonment with hard labour after being found guilty of contempt of court together with Post Newspapers.

Magistrate Simusamba also sentenced M'membe to four months simple imprisonment on behalf of Post Newspapers.

However, M'membe appealed against the conviction and the High Court has since set April 2, 2012 as the date for judgment.