NDC leader Chishimba Kambwili has asked the Lusaka Magistrates’ Court to refer his defamation of the President case to the High Court for determination of seven constitutional questions.
Meanwhile, a Superintendent based at police headquarters, Stephen Nkowani, has told the court that Kambwili has no constitutional right to express his opinions when offering checks and balances to government.
This is in a matter where Kambwili is accused of calling President Edgar Lungu a ‘dog’.
When the case came up before chief resident magistrate Lameck Mwale, Kambwili, through his lawyer Keith Mweemba, made an application to have the matter referred to the High Court for determination of constitutional questions.
Among the seven questions Kambwili wants the court to determine is whether or not the action taken by the state, through the police to arrest and prosecute the accused person on unclear charges, infringes the right to the protection of freedom of expression in line with the Constitution.
Kambwili wants a determination on whether or not the offense of defamation of the President in the manner it has been done under the authority of Section 69 of the Penal Code contravenes or infringes his right to fair trial.
He is further seeking a determination on whether or not his arrest and prosecution on the said charge is in violation of the principle of quality of arms and the right to fair trial.
Kambwili also wants the court to quash the indictment, as the particulars of offence do not disclose an offense of defamation of the president.
State prosecutor Charity Bauleni in her response said she had not been served with documents relating to the said application.
Bauleni said it was not possible for the prosecution to respond immediately, and later sought an adjournment to look at the provisions of the law which had been cited.
Earlier in his examination in chief, Nkowani who is Kambwili’s arresting officer narrated that on August 27 ,2019 whilst on duty he took over the docket of defamation of the president.
The complainant, Daniel Nyati, lodged a complaint against Kambwili relating to the utterances in a video which was circulated on social media.
He said Nyati showed him a video on his phone where Kambwili, talking to someone unknown, said: “Not ishi imbwa shabantu. Yaleikala ku Chawama elyo yamona Sta ….ati ntandale icalo. Eko baitafye kuya. Kuti washa umutengo wabunga abantu balelwila K150 waya? Kumonafye nabantu abika, kuti wabula Kampyongo ati minister of home affairs; kuti caba calo? Ba Kaizer incito ni boasting. (Not these dogs of human beings. It was living in Chawama then it sees Sta…and says let me explore the country. Wherever it is invited it goes. How can you leave a situation where people are fighting for a bag of mealie-meal at K150? Just look at the people he has placed, how can you make Kampyongo minister of home affairs, can that be a country? Kaizer’s only job is boasting).
Nyati said according to his findings the sentiments uttered by Kambwili were insulting and demeaning which should not be used on a human being, especially the President.
He said he demanded that the video be downloaded in order to subject it to further investigations and he submitted to police forensic headquarters for examination and results indicated that it was not altered.
And Nkowani further stated that whilst investigations were ongoing, another person by the name of Alan Mkandawire went to lodge a complaint to the police station relating to an article published in the Daily Nation relating to Kambwili’s sentiments.
Nkowani said he invited three witnesses: his colleague Mulungisha, Chilufya Mulenga and Evaristo Musonda who translated the said Bemba words into English.
Nkowani said he further interviewed Zambia Daily Mail deputy director Chapadongo Lungu who confirmed that Stephen Kampyongo and Kaizer Zulu were appointed by President Edgar Lungu as minister of home affairs and political advisor respectively.
Kambwili’s arresting officer said the Head of State used to stay in Chawama when he was minister of justice and from the sentiments in the video he discovered that it indicated people of Chawama and not the compound or the constituency.
“After gathering all this information, I summoned Dr Chishimba Kambwili and conducted an interview. And I charged him for defamation of the President under warn and caution.
He said he understood the charge but he denied the same. I arrested him and he was detained in police custody.” explained Nkowani.
In cross examination by Kambwili’s lawyer Mweemba, Nkowani affirmed that the article published in the Daily Nation newspaper attributed to Kambwili did not show the words Kambwili allegedly uttered.
He affirmed that Jack compound was under Kabwata constituency and not Chawama, and President Lungu had never been elected as Kabwata member of parliament; neither did he ever reside in Chawama compound.
Nkowani said he was not aware that the first complainant in the matter was PF surrogate Peter Chanda, neither was he aware that Chanda who is New Congress Party leader withdrew the complaint and directed his secretary general Nyati to lodge the complaint against Kambwili.
He affirmed that the person who recorded the said video remained unknown and had never been interviewed by the police.
When asked if the said individual was a very important witness, Nkowani responded in the affirmative.
Nkowani said he could not tell whether the recording was altered or not.
When asked if Kambwili had the constitutional right to express his views as a politician in order to provide checks and balances to government Nkowani responded in the negative.
He confirmed that Kambwili was denied police bond and only applied for bail when he appeared before court.
Magistrate Mwale asked Nkowani why Kambwili was not granted police bond to which he said the NDC leader did not meet the condition of raising sureties.
When asked why he could not attach other conditions to the police bond, Nkowani said he did not have powers to do such.
He agreed that Kambwili’s freedom of movement was curtailed by the police when he was denied police bond.
Nkowani further confirmed that Kabwe central member of parliament Tutwa Ngulube incited the police to arrest Kambwili but later claimed that he did not know Ngulube.
At this point Mweemba made an application that the matter be referred to the High Court for constitutional determination based on the answers given by the arresting officer.
Magistrate Mwale adjourned the matter to June 17 for ruling and possible continued cross examination.