By Mwaka Ndawa
THE Economic and Financial Crimes Court has thrown out an application by Kabushi PF member of parliament Bowman Lusambo to cite Lusaka Province UPND national youth chairperson Anderson Banda for contempt of court for making threats against his life and that of his wife.
Magistrate Faidess Hamaundu declined to commit Banda to prison for allegedly interfering with proceedings on the basis that the alleged contempt was not made in the face of the court.
This is in a matter where Lusambo is facing 10 corruption-related charges; among them one count of corrupt acquisition of public property, five counts of possessing property suspected to be proceeds of crime, three counts of tax evasion, and one count of conspiracy to defraud.
He is jointly charged with his wife Nancy Manase for possessing four houses in Silverest Gardens, Chongwe which were suspected to be proceeds of crime.
At the last sitting, Lusambo’s lawyer Makebi Zulu submitted that on May 20 Banda who led a horde of UPND cadres planned to attack the accused and his colleague Raphael Nakacinda.
He claimed that individuals who had accompanied Lusambo were victimised and the accused eluded the cadres using the subway leading to the holding cells, and was later whisked away by police officers using anti-riot vehicles.
ACC prosecutors Martin Mayembe and Daniel Ngwira said the alleged contempt was made outside the face of the court and that such type of contempt could not be dealt with as it did not require summary proceedings.
In her ruling, magistrate Hamaundu said it was the duty of the court to protect accused persons and officers of the court from any harm or interferences.
She said contempt was divided into acts; contempt committed in the face of the court itself in facial curia, and acts committed outside court ex-facial curia and that they were all considered as unseemingly behaviour.
“There are two ways in which contempt of court can be dealt with; by instituting summary procedure where the court considers the matter as part of the proceedings in which the contempt occurred or by way of complaint and charge before another magistrate,” magistrate Hamaundu said. “Summary proceedings of contempt of court can be instituted if the contempt was conducted in face of the court which is not the case in this matter.”
She ruled that the summary procedure applied for by Zulu could not be applied by the court as the alleged contempt was not committed in her presence.
“At common law, every charge of the court of record has power to immediately commit the contempt committed in its presence but the power of an inferior court to commit the contempt committed out of court, a Magistrate’s Court being the court of record has its inherent jurisdiction to punish a contemnor for contempt committed in the face of the court,” she said. “In view of the fact that the said contempt was not committed in the face of the court to attract summary proceedings, the only procedure available to the accused is by way of a complaint and a charge and trial before another magistrate.”
Magistrate Hamaundu said where a complaint and a charge of contempt proceedings was instituted, she had no jurisdiction to determine such a case unless it had been allocated to her by the chief resident magistrate.
“The application to cite Banda for contempt is therefore denied,” said magistrate Hamaundu.
The State further opposed an application by Lusambo’s lawyer Nkhula Botha to raise a preliminary issue relating to housekeeping at the next sitting.
Ngwira and Mayembe said under special courts matters were not driven by lawyers but by the courts.
They submitted that the defence was deliberately making applications to frustrate the court, which was an abuse of court proceedings as the court guided that the defence raised their issues at once.
“The other application they intended to make was abandoned. It is shocking for the defence to state that they want to make another application. We shall not dance to the tune of the defence to allow any frivolous application,” said Mayembe. “If they intend to make an application, the time is now. We have brought witnesses on different dates at a cost and public funds have been spent. Without courtesy of informing us that they intend to make an application so that we do not bring witnesses, we were caught by surprise with their application. The defence slept on their rights to make their application.”
Botha later suggested that the parties proceed to agree on trial dates.
Trial commences on July 12.