Africa-Press – Zambia. THE Lusaka Magistrates’ Court has referred Raphael Nakacinda’s defamation of the President case to the Constitutional Court for determination on whether or not he can be tried on the offence when the Head of State enjoys immunity from lawsuits.
Lawyers representing Nakacinda, Makebi Zulu and Jonas Zimba have argued that the state cannot maintain a case of defamation of the President against their client when the President cannot be cross examined in relation to the alleged offense. In this matter, Nakacinda accused President Hakainde Hichilema of interfering in the operations of the judiciary.
Nakacinda who is PF chairperson for information and publicity on December 13, 2021, with intent to bring President Hichilema into hatred, ridicule or contempt, caused to be published a defamatory statement whilst addressing a crowd of PF members at the High Court when he alleged that “Hakainde Hichilema is not sleeping, he has begun to summon judges at his house to try and intimidate or coerce them to advance an agenda to bring a one party state in the country.”
When the matter came up for continuation of trial, chief resident magistrate Dominic Makalicha disqualified himself from handling the matter on professional grounds and re-allocated it to principal resident magistrate Jennifer Bwalya.
Before Nakacinda could take plea, Zimba made an application to have the matter referred to the Constitutional Court to determine whether the provisions of section 69 of the Criminal Procedure Code were in conflict with Article 8(d) of the Constitution as amended in 2016.
He said the amended Constitution provides for national values and principles and excludes the principles of equity, social justice, equality and non-discrimination including the provisions of Article 9(a) which enjoin the court to interpret the constitution based on national values.
“The issue we have raised is constitutional. And Article 28(2) and 128(3) of the Constitution, we are not able to argue the constitutional issue before this court for the reason that the Constitution itself does dictate the correct forum before which such an application ought to be made,’’ Zimba submitted.
“In our answering of the question, issues of Article 98(4) of the Constitution relating to immunity of the President and his participation in court proceedings will arise. The matters can be properly put before the High Court or the Constitutional Court. These matters will raise a constitutional question which equally deals with the concept of equality of arms in the Constitution.”
Zimba submitted that Articles 8,9 and 98(4) of the Constitution as they relate to section 69 of the Criminal Procedure Code (CPC) create lacunas under the new Constitution and the grey areas may result in a conflict relating to the said provisions.
“Our question is neither frivolous nor vexatious; it’s a proper question for purposes of preserving and upholding the rights of citizens in a democratic society,” said Zimba.
“Secondly, development of our jurisprudence as a democratic society and to help provide a sustainable avenue of critics against the executive as well as provide effective checks and balances and separation of powers.”
And Zulu said section 8(2) of the Constitutional Court makes it mandatory for the court to refer questions relating to the Constitution to the Constitutional Court.
He said Article 9 was mandatory that values must be considered when interpreting the Constitution. Zulu said Section 69 of the CPC criminalised defamation of the President when the President was immune to civil and criminal proceedings.
“Defamation being personal in nature, the President is allowed by section 98 to proceed against a citizen but the citizen has no opportunity to subpoena the President for purposes of cross examination or to establish whether he feels or has been defamed,” Zulu submitted.
“We have a situation where the President can wake up any day and call others a clique of thieves but no one can wake up and say that against the President. The import of Article 98 is supposed to exclude offences such as defamation of the President.”
In response, state prosecutor Abraham Ngozoh said there was no authority which stopped the court from proceeding with the matter as the people were the complainants and not President Hichilema.
“The President occupies an institution and the issue that he cannot be cross- examined was taken care of by the drafters of the Constitution, but it was meant to give credence and respect to the office of the President,” he said.
“The accused should take plea. We do not object to have the matter referred, the application has been made before many courts and they have taken similar decisions to proceed until the constitutional issue is determined and this has not barred courts from determining the matter.”
Zulu, who thanked Ngozoh for not being a stumbling block in Nakacinda’s pursuit of justice by conceding that there was an issue to be determined, said the defence and argument of Nakacinda was that the case was unconstitutional and the subordinate court was incapable of pronouncing itself on the same.
“We cannot proceed for want of jurisdiction. The matter has never been tested by the Constitutional Court and this will be one of its kind. We pray that the matter be referred to the Constitutional Court and the proceedings be stayed until the matter is determined by the Constitutional Court,” said. Zulu
Zimba further argued that the proposition that several courts had taken a similar view was incorrect and the court should not be swayed to take that proposition.
He added that proceeding to hear the matter pending determination before the Constitutional Court would be irregular and a waste of judicial resources as it might result in courts giving conflicting judgments.
In her ruling, magistrate Bwalya referred the matter to the superior court and explained the charge to Nakacinda. However, Nakacinda could not take plea as magistrate Bwalya is yet to deliver a ruling on whether she can proceed to prosecute him while the matter is pending determination before the Constitutional Court. Magistrate Bwalya adjourned the case to January 28.
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