LUSAKA magistrate Trevor Kasanda has declined to remand New Labour Party leader Fresher Siwale in custody for absconding court due to illness as he awaits to open defense in a matter where he is facing a charge of defamation of the President.
Siwale is accused of defaming former president Edgar Lungu when he alleged that the latter was not Zambian and that his real name is Jonathan Mutaware.
The accused, with intent to bring the President’s name into ridicule, hatred or contempt on April 22, 2018 during The Assignment programme on Muvi TV alleged that Lungu is an identity fraud.
Siwale could not tell his side of the story as magistrate Walusiku was indisposed. The case was mentioned before magistrate Kasanda.
State prosecutor Abraham Ngozo informed the court that the matter was coming up for return of bench warrant and that Siwale had been taken to court by his layers Gilbert Phiri and Keith Mweemba.
He said the police had not yet executed the bench warrant which was still in force.
“The trial court is out of station. Since I have conversed with counsel, they are saying that the accused was critically ill as he couldn’t even walk. Now that he is here, we leave it to the discretion of the court. We will give him a benefit of doubt given that his health is unwell,” Ngozo said.
Phiri said Siwale had been availed before court but the trial court was out of jurisdiction and he requested that the state withdraws Siwale’s warrant of arrest.
“The onus is now on the prosecution in light of the presence of the accused and with regard to the liaisons that we had with the prosecution, it’s now incumbent upon them to withdraw the warrant so that perhaps we can agree on trial dates. Failing that, the matter can simply be mentioned and the issue regarding the return of bench warrant be dealt with by the trial court,” Phiri submitted.
“The accused person, your honour, is before this court and as intimated by the learned PP, he was unwell due to being debilitated by COVID-19 and was unable to walk and there is documentary proof to that effect. We wish to contend that in these circumstances, it is open to the PP to withdraw the bench warrant or this court, if minded to inquire into the issue of bench warrant, proceed to do so or failure to which, the matter be adjourn so that the trial court may deal with this issue.”
Mweemba said the court was moved by members of the bar, therefore, Ngozo had the power to withdraw the warrant of arrest and did not need to wait for the trial court, especially that the defence and prosecution had been liaising.
“Good practice demands that our brother from the state can simply apply to withdraw and agree when we should meet next before the trial court. And the matter can be mentioned here. This court still has jurisdiction to receive the application and cancel the bench warrant,” Mweemba said.
Ngozo proposed to only mention the matter since Siwale was not arrested and the issue regarding his freedom would be dealt with by the trial court.
“As I indicated earlier, what is on the record is that the client for the two defence counsel was not well, that’s what is on the record and it’s incumbent upon the trial court to hear this matter in order to appreciate what the defence counsel have put forward which is on the record,” he said.
“The state had made an application owing to the fact that the accused person had on several occasions not availed himself for the court proceedings which in two instances, there was no explanation given by either the defence or the surety. His bail conditions shows that the accused person had two sureties. We still don’t know why those two sureties could not have come forth.”
Ngozo maintained that the warrant of arrest against Siwale cannot be withdrawn as the solution was to have him remanded in custody until the trial court returns.
But the magistrate said he would not have Siwale locked up but he would only mention the case as the matter would be sorted out by magistrate Walusiku.
The matter comes up on October 4, for return of bench warrant and possible defense.