By Mwaka Ndawa
KABUSHI PF member of parliament Bowman Lusambo has asked the Constitutional Court to determine whether President Hakainde Hichilema acted in excess of his powers to question the source of his wealth during a press conference last month.
Lusambo argues that President Hichilema has tried and convicted him publicly with the full knowledge that the matter is active before court.
This is in a matter where Lusambo is facing 10 corruption-related charges before the Economic and Financial Crimes Court; 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 procceds of crime.
When the matter came up before magistrate Faidess Hamaundu, Lusambo’s lawyer Makebi Zulu submitted that on April 25 the Head of State during a press conference questioned where Lusambo got US $150,000 to buy a house when he was just a die hard cadre who could not afford a first class ticket
Zulu said the matter, being active before court, precludes any person from making comments touching on the case.
He submitted that Section 116 (1)(d) of the Penal Code provides that any person who comments on matters active before court capable of prejudicing any person is guilty of contempt of court and liable to imprisonment for six months or a fine amounting to 750 penalty units.
“The statement by the President was unfortunate and falls squarely within the supervision. We are aware that he is immune to prosecution and as such cannot be cited for contempt. Article 91(3) makes it incumbent on the President to protect and promote the rights of the accused person before you,” Zulu said. “The accused person was tried and convicted by the President publicly in a matter where he was surely aware was before court. He questioned why people were rushing to the Constitutional Court and their fear.”
He said the statement by the Head of State was an abrogation of the Constitution as Article 122 (4) provides that a person holding cabinet office shall protect the independence, dignity and effectiveness of the judiciary.
Zulu requested that the matter be referred to the Constitutional Court for determination on whether or not the statement amounts to violation of the Constitution.
“The court should deal with the contempt first by purging the contempt and then the matter can be dealt with. By reason of Article 98 of the Constitution which gives immunity to the President, the only route available to this Court is to refer the question to the Constitutional Court as to whether the conduct and speech of the President was in contravention of the constitution,” said. “The Court should determine whether Article 98 allows the President to breach the law. We pray that the Court refers the matter to the Constitutional Court as the person at the Centre of the contempt is not an ordinary person but a person who wields executive authority.”
In response, state prosecutor Martin Mayembe said the preliminary issue was misplaced and was not supposed to be raised before Court.
He said the statement was made outside court, and the alleged contempt could not be construed as contempt.
Mayembe submitted that the defence should have brought the issue before court in a different manner.
“Suggesting that the application will prejudice Lusambo is unfounded as the judiciary is independent and not subject to control from any person with authority. The contempt being alleged under section 116 of the Penal Code is civil in nature. This is an attempt to have the proceedings arrested and delay them further,” said Mayembe. “The issues being raised can be separately dealt with without undermining the proceedings before Court.”
Another prosecutor Tyson Mudenda submitted that the issues raised border on allegations against the President when the Constitution has provided guidelines on actions to be taken by people aggrieved with the actions of the President.
“The entire case cannot be referred to the Constitutional Court but only the issues raised by the defence ought to be referred. Whatever actions those aggrieved by the President take cannot be a basis to abort criminal prosecution.
The nature of the complaint is civil and cannot arrest criminal proceedings,” said Mudenda.
Zulu clarified that the application was not bordered on contempt but the interference of the independence and performance of the judicial function by the President as he drew a conclusion that Lusambo was guilty.
He said no civil proceedings have been instituted as the application was made under the criminal proceedings.
“The application is for a constitutional reference and a determination that will guarantee the protection of the rights of the accused to a fair trial. We could have made an application for the court to censure the President but it will require interpretation on such abhorrent conduct that impugn the right to a fair trial, so that it is nipped in the bud,” said Zulu.
Magistrate Hamaundu adjourned the matter to May 20 for ruling.