LAWYERS representing New Labour Party leader, Fresher Siwale have asked the Lusaka Magistrate’s Court to refer to the High Court the matter in which he is charged with defamation of the President for constitutional determination.
Meanwhile, Nelson Dhliwayo, who was President Edgar Lungu’s Primary School teacher at Ishuko Primary School, testified that President Lungu was an intelligent boy whom he entrusted with the class whenever he left class to attend staff meetings.
Keith Mweemba and Gilbert Phiri asked magistrate Alice Walusiku to refer the matter to the High Court for determination of constitutional questions which have never been deliberated upon in the country.
Mweemba told Magistrate Walusiku during Dhliwayo’s cross-examination that his client had an application to make to have the case referred to the High Court.
He said his application was anchored on Article 18 clause 2 (c) and (e) accounting mandatory terms that the accused person has a constitutional right to be given not only time but facilities for the preparation of his defence as the defence of the accused person starts at the inception of the prosecution case.
Mweemba said that the State was in possession of items that were seized from Siwale such as a book which the President commissioned during it’s launch titled, Edgar Against All Odds authored by Anthony Mukwita.
“The book is about President Lungu and we need that book to be released to our client so that we can use it during cross-examination to demonstrate that the answers being given by the witness are at variance with what’s in the book. That book talks about the President’s life,” Mweemba said.
He said the second application was anchored on article 28
clause 2(a) and was for the court to refer the matter to the High Court for determination of constitutional questions which have never been deliberated upon in the history of Zambia.
He said that the constitutional questions for reference to the High Court were whether or not the prosecution of the accused person on a charge of defamation of the President was in violation of a right to a fair trial, to the bill of rights…under article 18 2(c) of the constitution and whether or not the prosecution of the accused person on the charge of defamation of the President is in violation of the principal of equality of arms and the right to fair trial in the bill of rights.
(ii)Whether or not the prosecution of the accused charged with defamation of the President is in violation with the equality to free trial.
(iii) whether or not the arrest and prosecution of the accused person on the charge of defamation of the President and considering that the President enjoys immunity and therefore cannot appear before court was in contravention article 18 of the constitution as regards to secure a protection of law on all fronts.
(iv) whether or not the arrest and prosecution of the accused person on the charge of defamation of the President entails the constructive waiver of immunity of the President as regard the equality of arms and the right to fair trial vis-a-vis the jurisprudence of jurel relations and or legal position between the President and the accused person.
(v) whether or not the decision in the case of Fred M’membe and Bright Mwape Vs the People and Fred M’membe, Masauso Phiri and Goliath Mungonge Vs the People in 1996 was good law in view of the drastic changes in the constitutional jurisprudence and Zambia’s legal order and indeed whether or not the same violates Articles 18, 19, 20 and 23 of the constitution.
Mweemba submitted that the above questions have never been determined by any court in Zambia and it was clear that the State could not bring the President to court in order for him to be cross-examined by the accused person.
“Defamation is a personal matter and we do not know how the President felt because he has never complained or is it that the police that have taken it upon themselves to charge someone when they cannot bring the
person allegedly defamed to be a witness. In this case the President enjoys immunity, the necessary implications is that the moment a matter is taken to court which has a direct bearing on the President who enjoys immunity then that immunity is considered to have been wavered,” said Mweemba.
And Phiri submitted that the grave charge the accused person was facing arose out of a duty imposed on him by Article (2) of the constitution.
The accused person questioning the identity of the President falls within Article 2 of the constitution.
However, the State argued that the application by the defense when the accused had already taken plea was a tactical move to derail the pace at which the matter had moved so as to abort dispensation of justice.
“The constitutional questions, equally, the State’s reservations that the defence having been accorded chance, again, such an application was to abort justice dispensation. The President is an institution and the State cannot bring an institution to be subjected to cross examination by the accused person,” submitted prosecutor Ngozo.
Earlier, President Lungu’s former primary school teacher told the Lusaka Magistrate’s Court that Lungu was among the most intelligent pupils in his class at Ishuko Primary School in Chimwemwe Township.
Dhliwayo, 76, a retired teacher and small-scale farmer, narrated that in 2014, he was approached by Charles Muleba, his former pupil who was also President Lungu’s former classmate.
Dhliwayo said Muleba told him that he had produced a cabinet minister through his profession.
“He revealed to me that the first class I taught, after graduation, there was a boy by the name of Edgar Lungu and I felt proud,” he said.
Dhliwayo said in 2014, he traveled from Kitwe to Lusaka to visit the Head of State at the Ministry of Home Affairs where a secretary ushered him into his office.
“After walking into the office, the moment he saw me, Edgar stood up. I asked him if he could remember me after all this time, he said yes. We both recognised each other and began to talk,” he said.
Dhliwayo said the President was one of his brightest pupils who used to get distinctions in the weekly tests.
He said he would group his pupils according to their performance and the President was always in group A.
“I used to ask Edgar Lungu to remain in charge of the class whenever we had staff meetings. I was not really surprised when I heard that he is a Cabinet minister because his qualities followed him,” Dhliwayo said.
“The little boy that I taught is our Republican President of the Republic of Zambia. He lived in Chimwemwe, house number 4001 where he lived with his parents. His house was a stone throw away from school.”
He said as a teacher, he would visit the pupils, from the dullest to the brightest and when he visited Lungu, he used to find his mother but he never bothered to ask her name.
Dhliwayo said in 1972, President Lungu went to Mukuba Secondary School in grade eight.
During cross-examination, Dhliwayo said he did not have any enrollment form to show that President Lungu was his pupil.
He said he did not have documented evidence to show that he visited Lungu at cabinet office in 2014.
Dhliwayo said that if the President was allowed to go to court, he would confirm his testimony as he was his class teacher.
He further denied that President Lungu was the only person who would tell the court that he was staying with his mother, arguing that other people could confirm that he was staying with his mother.
At this point, the defence applied to have the matter referred to the Constitutional Court for determination of questions raised among them whether or not the protection of the accused under section 69 of the Penal Code Chapter 87 of the Laws of Zambia was in violation of rights to fair trial in the Bill of Rights enshrined under Article 18 clause 2(c) of the Constitution of the Laws of Zambia.
The matter comes up on September 4, 2019 for ruling.