LAWYERS representing Post editor Fred M'membe in a matter where he and The Post were yesterday found guilty of publishing contemptuous material have said they will appeal against the convictions.

And Lusaka senior resident magistrate David Simusamba reserved sentence in the matter to tomorrow in order for him to look at the defence's mitigation.

This is in a matter in which M'membe and The Post were facing contempt charges arising from the publication on August 27, 2009 of an article entitled, 'The Chansa Kabwela case: A comedy of errors' that was authored by US-based Zambian law professor Muna Ndulo.

The defence lawyers, Remmy Mainza and George Chisanga, said yesterday that whilst they respected magistrate Simusamba's judgment, they did not agree with it and hence their decision to appeal against it immediately.

In his over one-hour judgment, magistrate Simusamba said he found M'membe and The Post guilty of contempt because the article complained of had delved into some issues that were supposed to have been determined by the court before which the people versus Chansa Kabwela case was proceeding.
Magistrate Simusamba said the defence had conceded that the article in question had been published in The Post.

Magistrate Simusamba said the prosecution case was premised on the belief that the article under contention was touching on the Chansa Kabwela case and that it seemed to suggest that the case ought not to have been taken to court, as it was a comedy of errors involving President Rupiah Banda, the police and the Director of Public Prosecutions (DPP).

Magistrate Simusamba said the prosecution further premised their case on the belief that the article could also lower the authority and integrity of the court.

He also said the defence's argument was that the prosecution had failed to prove that the article in question questioned the Chansa Kabwela case proceedings.

Magistrate Simusamba said the defence further argued that the article under consideration was not capable of swaying or influencing the court's decision and that even at the time when the article was published, Lusaka chief resident magistrate Charles Kafunda had already delivered ruling in the Chansa Kabwela matter.

However, magistrate Simusamba said the prosecution submitted that the arguments by the defence were misplaced reasoning.

"I can't agree less with the prosecution. That is the law as it stands," magistrate Simusamba said.
He said the defence went on to argue that magistrate Kafunda was a professional lawyer who directs his own cases.

Magistrate Simusamba then delved into the article in question, where he noted that it described the Chansa Kabwela issue as an error of judgment on the part of President Banda.

He said the article had charged on how the people of Zambia had been failed by the President, police and the DPP in the issues around the Chansa Kabwela case.

Magistrate Simusamba said the article likened the Chansa Kabwela issue to Shakespeare's 'comedy of errors' and how the author termed the whole process as frivolous.

"The article then ventures into a lengthy discussion of what constitutes obscenity," magistrate Simusamba said. "It goes on to refer to English and American authorities."

Magistrate Simusamba said the article stated of the President Banda's directives to the police to arrest Chansa Kabwela.

He said it was a notorious fact that decisions or actions of the President often, if not always, attracted public interest. Magistrate Simusamba said fair criticism of such presidential decisions could not be said to be contemptuous, as the President does not interfere in any way in the fair administration of justice.

"Criticism of the police or the DPP in the manner as in the present case equally can't amount to contempt of court," magistrate Simusamba said. "However, the article discusses what constitutes obscenity."

Magistrate Simusamba said at this point, the article indulged in discussing merit and demerits issue that the court was supposed to determine in the obscenity issues of the Chansa Kabwela case.
"This was a clear case of contempt of court," he said.

Magistrate Simusamba said whilst he acknowledged the freedom of the press, he was mindful that the issue of public interest in such matters related to the fair administration of justice.

Magistrate Simusamba said M'membe had argued in his defence that the article was not contemptuous and that he spoke highly and bitterly of how President Banda sent police officers to catch him.

Magistrate Simusamba said it was also a notorious fact that the Chansa Kabwela case attracted a lot of public interest but that he did not know whether that public interest arose from M'membe's observations or from what had been contained in the article in question.

Magistrate Simusamba said although M'membe contended that the article was not contemptuous, he had already said the contempt in the article lay in its discussion of the obscenity merits and demerits of the Chansa Kabwela case.

"Once a publication has been stigmatised as contemptuous, it can't be legitimatised," magistrate Simusamba said. "There can be no such thing as a justification of contempt. This defence must therefore fail."

On M'membe's alibi that he had been attending an Economic Policy Management (EPM) programme at the University of Zambia (UNZA) at the time the article in question was published, magistrate Simusamba said there was no evidence before court to prove that M'membe had obtained leave from his official duties at his workplace.

"It is not enough for the accused to say that he was not at the sceneā€¦there must be evidence of that alibi and that is when the police is duty bound to investigate," he said.

Magistrate Simusamba said the editor-in-chief was responsible for whatever was published in the newspaper and that with modern technological advancements, an editor-in-chief could issue directives on what should be published without being physically present at the office.

He said as such, M'membe's explanation that he was not at the office when the article in question was being published could not therefore be an alibi.

"The claim that accused one (M'membe) used to spend all his time at UNZA or at his residence surely is out of the ordinary," magistrate Simusamba said. "I find that A1 (M'membe) is guilty as charged and convict him accordingly. I also find A2 (The Post) guilty as charged and convict him accordingly for the publication of contemptuous matters. The accused has a right to appeal to the High Court."

Lusaka Division Prosecution Officer, Frank Mumbuna, said the M'membe and Post human resources manager Reuben Phiri - who was in the dock as The Post - were first offenders.

In mitigation, Remmy Mainza said the offence on which his clients had been found guilty was a misdemeanor, which attracted a maximum prison sentence of six months or a fine not exceeding 750 penultimate.

"The position at law is that where the offence attracts a fine as an option to a custodial sentence, the court should consider fining the convict as opposed to meting out a custodial sentence," Mainza said. "This is an appropriate case by which, your honour, should consider fining the two accused persons in line with the provisions of the law. In the alternative, it is our humble prayer that the two accused persons are entitled to maximum leniency by this honourable court."

Mainza urged the court to consider suspending the sentence in the interest of justice, especially that there were no aggravating circumstances in the case.

Defence lawyer, Chisanga, beseeched the court to consider the issue that the contempt in the matter was not of the nature that the two accused persons intended to undermine the authority or prejudice the proceedings before which the Chansa Kabwela case was being heard.

"This contempt arose from a publication of legal authorities," Chisanga said. "The court will be moved to mete out custodial sentence where the contempt complained of is of a grave nature and the defence will therefore urge the court to consider that."

And when it came to passing sentence, magistrate Simusamba said he would adjourn to tomorrow to consider the issues raised in mitigation. He said he needed at least a day to consider the mitigation.
The matter comes up tomorrow at 09.00 hours.