Zambia: Lusaka High Court throws out the Post newspaper application

On 9 July 2010, The Lusaka High Court dismissed an application by The Post Newspapers editor-in-chief Fred M’membe in which he sought President Banda to appear in court for cross examination.

Judge Charles Kajimanga dismissed the application in his ruling delivered yesterday on grounds that it lacks merit. “ I have come to the inescapable conclusion that the application by the first alleged contemnor (M’membe) for leave to cross examine the plaintiff (President Banda) lacks merit and is accordingly refused,”  Justice Kajimanga said.

This is in a case where President Banda has applied to the court to commit M’membe to prison for disobeying a court injunction order that restrained The Post from publishing anything libelous about him at the time he was Vice President and Acting President.

According to media reports monitored in the Zambia Daily Mail of 10 July 2010, Judge Kajimanga took judicial notice that when President Banda commenced action against M’membe and The Post on 26 September 2008, he was substantively republican Vice President. He said that since Banda is now President, a fundamental change in circumstances has taken place since the action was commenced.

“I can only assume that it is for this reason that the plaintiff has elected not to come to court but rely on his affidavit evidence… it is undesirable that given this fundamental change in circumstances, the plaintiff, as Head of State, should be paraded in the witness box just for the purpose of being cross examined on his affidavit evidence,” Judge Kajimanga said.

He explained that since the contempt proceedings against M’membe are civil in nature, affidavit evidence is permissible in line with Order 52/4/5 of the Supreme Court rules.                                                                                     

Judge Kajimganga stated that it is plain that the proceedings arose from an injunction that the court granted President Banda, which injunction M’membe and The Post have allegedly breached.

He disagreed with arguments by M’membe’s lawyers that failure to cross-examine President Banda will result in miscarriage of justice.  Judge Kajimanga said M’membe’s lawyers have misinterpreted a supreme judgment which was made after they appealed against the High Court ruling, which decided that there was no impropriety for President Banda’s lawyer Christopher Mundia to dispose an affidavit in support of ex-parte application for contempt proceedings.

Judge Kajimanga said under Order52 of the Supreme Court Rules, M’membe is also at liberty to rely on his affidavit evidence, and may be cross-examined if he decides to give oral evidence.

He said the argument by M’membe’s lawyers that their clients will not be able to defend themselves if President Banda is not cross examined cannot therefore be sustained.  “There is of-course no doubt that the standard of proof applicable in the contempt proceedings is the criminal standard, which is proof beyond reasonable doubt. To succeed in these contempt proceedings, the plaintiff (President Banda) will be required to prove beyond reasonable doubt in his affidavit evidence that the alleged contemnors disobeyed the injunction granted by the court,” he said.

Judge Kajimanga further granted M’membe leave to appeal to the Supreme Court against the ruling. This was after an argument between his lawyer Remmy Mainza and Mundia.

The Judge however, said that since an appeal is not a stay of execution, the court would proceed to hear the main contempt proceedings and adjourned the case to 23 July, 2010 at 14:30 hours. //End//

- July 15, 2010 by IFEX

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Source: www.misa.org  (received via email alert on 15.07.2010)