Nakacinda wants ConCourt to determine extent of HH’s immunity
By Mwaka Ndawa
PF CHAIRPERSON for information and publicity Raphael Nakacinda has again asked the Lusaka Magistrates’ Court to refer his defamation of the President case to the Constitutional Court to determine whether President Hakainde Hichilema’s immunity extends to commenting on active court proceedings.
In this case, Nakacinda is alleged to have accused President Hichilema of meddling in the affairs of the judiciary by summoning judges at his house to promote the totalitarian rule.
When the matter came up for continuation of trial, Nakacinda’s lawyer Makebi Zulu said separation of powers ought to be respected among the three arms of government.
He said the executive should do what it ought to do, while the legislature including the judiciary should follow suit.
Zulu said the President was sworn to protect the Constitution which guarantees the protection of every accused person, and that an accused person has a right to fair trial without interference from any person.
He said the rights of Nakacinda are protected and even when the President feels injured, he has no right to comment on a matter that is subjudicae and commit contempt of court.
“There is no right to convict the accused in a court of public opinion to the extent of saying Nakacinda will pay. The President is clothed with immunity from prosecution and not immunity to breach the Constitution. Such a statement coming from the number one citizen of the country, who wheels so much authority, gives a perception that justice may not be done against the accused person,” Zulu submitted. “The statement by the President undermines the impartiality of the court. We acknowledge that the court’s hands are tied by immunity clothed on the President and thus relates to the Constitutional provisions. It is our application that the matter be referred to the Constitutional Court to deal with the aspect of whether the President’s immunity extends to interfere with Court proceedings by commenting on a matter that is subjudicae.”
Zulu wants the superior court to determine whether President Hichilema in his address to the media during a press conference held on April 25, was in breach of Article 91, 3(b)(a)(e) and (f) and in breach of Article 121(2) which provides that any person bearing the highest constitutional office shall not interfere with the judicial functions of a judge.
“Unless a strong message is sent regarding this matter the accused will not be seen to have a fair trial,” said Zulu.
In his response, state prosecutor Abraham Ngozoh said the application could not bar the court to deal with the matter.
“The court is not a court of public opinion but a court of records, and records facts as evidence is presented. The proceedings should continue as a reference is made,” said Ngozoh.
In response, Zulu said the last time the matter was referred to the Constitutional Court he was unable to move the Constitutional Court as the case record was still before the Magistrate’s Court.
He prayed that the matter be stayed for reference to the superior court for determination of the pertinent issues he had raised.