Magistrate refuses to grant Tukuta bail pending appeal

THE Lusaka Magistrates’ Court has denied photographer Cornelius Mulenga, popularly known as Chellah Tukuta, bail pending appeal to the High Court against his two-year jail term by

High Court judge Lameck Mwale, who sat as Lusaka chief resident magistrate, said Tukuta’s grounds of appeal do not show any prospects of success neither were there special circumstances warranting him to grant him him bail.

Tukuta was sentenced to two years imprisonment with hard labour for libel for alleging that former minister of information and broadcasting services Dora Siliya is the highest professional prostitute who sells young girls to high profile men.

Justice Mwale in his judgment said Tukuta’s libelous statement against Siliya was extremely careless, irresponsible and deliberately calculated to injure her reputation in the eyes of right thinking members of society.

He said Tukuta exhibited lack of respect for Siliya, an elderly woman who deserved the same.

However, in his notice of appeal, Tukuta, through his lawyers LCK chambers, said he intends to appeal the July 15,2021 judgment in its entirety on seven grounds of appeal.

According to his memorandum of appeal, Tukuta is challenging his sentence on grounds that the trial magistrate erred in law and fact by refusing to refer the appellant’s constitutional reference on the constitutionality of the offence of criminal libel under section 191 of the Penal Code to the High Court even after finding that the issues raised were not frivolous or vexatious.

He said the learned trial magistrate erred in law and fact when he determined that the words uttered by him were defamatory in the absence of any evidence to prove that assertion.

Tukuta said justice Mwale erred in law when he acknowledged the existence of a video that was wrongfully introduced into evidence or played in court.

He said justice Mwale misdirected himself by playing and considering the contents of a video wrongfully tendered into evidence outside of court proceedings.

“The learned trial magistrate erred in law when he held that the accused never furnished the court with evidence to substantiate his testimony thereby moving the burden of proof from the prosecution onto the accused,” Tukuta said.

“The learned trial magistrate erred in law and in fact by inferring guilt from the appellant’s decision to remain silent.”

Tukuta added that justice Mwsle erred in law by sentencing him to two years imprisonment with hard labour despite the fact that he was a first offender and that there were no aggravating circumstances to warrant such a punishment.

When the matter came up for hearing, Tukuta’s lawyer Meamande Wamukwamba asked the court to admit her client to bail pending appeal as there are high prospects of the appeal succeeding at the High Court and that by the time it will be heard Tukuta would have served a substantial part of the sentence.

She said during trial, Tukuta was on police bond and he did not pose any traits of a flight risk.

“We pray that the court exercises its discretion. The appellant is able to provide sureties and abided by the conditions the court will set,” said Wamukwamba.

In reply, state advocate Bob Mwewa did not object to the bail application saying bail pending appeal was at the discretion of the court.

“If the court decides to grant bail, it should make sure that they will be abided to looking at the status of the convict,” said Mwewa.

In his ruling, justice Mwale said he did not agree with the defense that the chances of Tukuta’s appeal succeeding were high.

“It is common cause that appeals from the subordinate courts are normally processed within 90 days. I don’t think the convict would have served the substantial part of the sentence if he is not released on bail. Further, there are no special circumstances in this matter to warrant the grant of bail to the convict. In the premises, I decline the application of bail pending appeal, the convict is at liberty to make a necessary application to the High Court,” said justice Mwale.

“I do not see a circumstantial or special reason warranting me to grant the appellant bail.”

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