THE Lusaka Magistrates’ Court has declined to grant the application by NDC leader Chishimba Kambwili to refer his defamation of the President case to the High Court and Constitutional Court for determination of seven constitutional questions.
This is in a matter where Kambwili is accused of calling President Edgar Lungu a ‘dog’.
Kambwili, through his lawyer Keith Mweemba, had made the application to have the matter referred to the High Court based on Article 28 (2) of the Constitution Cap 1 of the Laws of Zambia for determination of constitutional questions.
Among the seven questions Kambwili wanted the Constitutional Court to determine was whether or not the action taken by the state, through the police to arrest and prosecute him on unclear charges infringes the right to the protection of freedom of expression in line with Article 20 of the Constitution.
Kambwili sought 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 rights to fair trial.
He was seeking a determination on whether or not his arrest and prosecution on the said charge was in violation of the principle of quality of arms and the right to fair trial.
Kambwili also wanted the court to quash the indictment as the particulars of offence do not disclose an offense of defamation of the president.
But in his ruling, chief resident magistrate Lameck Mwale dismissed the application by Kambwili on grounds that it lacked merit.
Magistrate Mwale further ordered that the cross-examination of Kambwili’s arresting officer Stephen Nkowani continues.
At the last sitting, Nkowani, in his evidence in chief, narrated that on August 27, 2019, whilst on duty, he took over the docket of defamation of the president where 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 was talking to someone unknown saying “Not ishi imbwa shabantu, yaleikala ku Chawama elo yamona ste ….ati intandale 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 inchito ni boasting, which meant that (not these ‘dogs’, it used to reside in Chawama and given an opportunity, it wants to explore the world and visit every place, wherever an invitation is extended to it when people are scrambling for a 25Kg bag of mealie meal pegged at K150.
“Can you leave the price of mealie-meal at K150 and you leave the country? You can even see the people he appoints; how do you appoint Kampyongo as a Minister of Home Affairs, can it be a country? Kaizer all he does is boasting. Okay guys”, Kambwili is heard saying.
Nkowani told the court that Nyati had indicated that 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.
Nkowani further stated that whilst investigations were still ongoing, another person, Alan Mkandawire, went to lodge a complaint to the police station relating to an article which was published in the Daily Nation with regards to Kambwili’s sentiments.
He said he 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 live in Chawama when he was Minister of Justice and from the sentiments in the video, he discovered that the statement 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 and 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,” said Nkowani
In cross-examination by Mweemba, Nkowani affirmed that the article published in the Daily Nation attributed to Kambwili does not show the words Kambwili allegedly uttered.
He affirmed that Jack compound was under Kabwata Constituency and not Chawama and President Lungu has never been elected as Kabwata member of parliament neither did he used to reside in Chawama compound.
Nkowani said he was not aware that the first complainant in he matter was a 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 to complaint against Kambwili.
He affirmed that the person who recorded the said video remains unknown and has never been interviewed by the police.
When asked if the said individual was a very important witness in the matter Nkowani responded in the affirmative.
Nkowani said he cannot tell whether the recording was altered or not.
Asked if Kambwili had the constitutional right to express his views as politician in order to provide checks and balances to government, Nkowani responded in the negative.
He confirmed that Kambwili was denied police bond and he applied for bail when he appeared before court.
Magistrate Mwale asked Nkowani why Kambwili was not granted police bond to which the arresting officer responded that 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 does not have powers to attach other conditions.
He agreed that Kambwili’s freedom of movement was curtailed by the police when the latter was denied police bond.
Nkowani further confirmed that Kabwe Central member of parliament Tutwa Ngulube incited the police to arrest Kambwili but the witness claimed that he does not know Ngulube.