The Lusaka Magistrates’ Court has dismissed an application by New Labour Party leader Fresher Siwale in which he wanted the matter where he is accused of defaming the President to be referred to the High Court to determine the constitutionality of the trial before court.

Principal resident magistrate Alice Walusiku has ordered that the matter continues with trial, saying there is nothing to warrant her to refer the matter to the High Court for the determination of some Constitutional questions.

This is the matter in which New Labour Party leader Fresher Siwale is charged with defamation of the President.

Siwale is alleged to have, on April 22, 2018 with intent to bring the name of President Edgar Lungu into ridicule, published defamatory matter by word of mouth to which he said ‘the President of the Republic of Zambia is not the actual Edgar Chagwa Lungu but Jonathan Mutawale, he must be arrested for having three National Registration Cards, he is an identity thief’.

Previously, President Lungu’s former head teacher at Ishuko Primary School in Kitwe’s Chimwemwe Township told the Court that the Head of State was one of his brightest pupils who used to get distinctions in weekly tests.

Nelson Dhliwayo, a 76-year-old retired teacher and small-scale farmer, had further testified that President Lungu was always in group A.

But Siwale, through his lawyers Keith Mweemba and Gilbert Phiri, had applied to have the matter referred to the High Court for the determination of some Constitutional questions, among them whether or not his prosecution on the charge of defamation of the President was in violation of a right to fair trial to the bill of rights enshrined under Article 18 2(c) of the Constitution.

The lawyers had submitted that because the President enjoyed immunity, the State could not take him to court for him to be cross-examined on how he was defamed.

“Defamation is a personal matter and we do not know if the President has ever complained against the accused of his feelings or is it that the police have taken it upon themselves to charge someone when they cannot bring the person allegedly defamed to be a witness?” they had questioned.

The defence also applied that the State be compelled to release a book titled ‘Against All Odds, President Lungu’s Rough Journey To State House’ authored by Anthony Mukwita, as they intended to use it during cross examination to demonstrate that the answers being given by the witness were at variance with what was in the book.

But when the matter came up for ruling, Wednesday, magistrate Alice Walusiku dismissed both applications.

She said the book in question had not been produced in court that only had authority only on exhibits produced before it.

On referring the matter to the High Court, magistrate Walusiku said there was nothing to warrant her to take the matter to a higher court because there were cases where such issues were raised and the High Court sent back the matter to the lower court to proceed with trial.

“I am satisfied that in this case before me, there is nothing to warrant me take the case to the High Court for constitutional issues to be determined. I thereby deny the application and order that trial proceeds,” magistrate Walusiku ruled.

Trial continues on October 8 and 9 at 12:00 hours and October 14.