By Mwaka Ndawa
MAGISTRATE Faidess Hamaundu has declined to suspend Bowman Lusambo’s criminal proceedings before her to allow the Constitutional Court determine whether President Hakainde Hichilema acted in excess of his powers to question the source of his wealth during a press conference on April 25 whilst 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 proceeds of crime.
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 diehard 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.
“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,” submitted Zulu.
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.”
Ruling on the matter on Friday, magistrate Hamaundu said the court determines matters based on evidence presented before it and not public opinion.
“I do not think we need to halt proceedings to allow issues raised by the accused to be determined before the Constitutional Court. The issues raised by the defence and the proceedings before me can be handled separately,” said magistrate Hamaundu.
“There is nothing alleged to be said by the President that affects the independence of this court. The application is declined and we will proceed with trial at the next sitting.”
Magistrate Hamaundu further declined to adjourn the case for two months as there were pre-trial dates set by the parties and that the court had adjourned other matters to attend to Lusambo’s case.
She adjourned the case to May 24, 2022.
After court session, the startled Lusambo eluded UPND sympathisers using the subway leading to the holding cells.
The UPND sympathisers had thronged the court premises in solidarity to the Head of State for being ridiculed by Lusambo and PF chairperson for information and publicity Raphael Nakacinda.
Lusambo was whisked away by police using armoured riot control vehicles whilst his colleagues Nakacinda and Given Lubinda used the magistrate’s entrance.
UPND Lusaka province youth chairman Anderson Banda explained that he and others attended the court session to express their displeasure over Lusambo and Nakacinda’s insolent behaviour towards the President.
“These surrogates [Chilufya] Tayali, Nakacinda and Bowman Lusambo have been insulting the President and we have been keeping quiet. But I want to warn them that there will be no space to tolerate that nonsense,’’ said Banda. ‘’Nakacinda must tone down, otherwise he has been spared today. We came here to offer solidarity to the President and we are within the law. If we wanted to manhandle Lusambo and Nakacinda they could have been in the air by now.”