The Lusaka Magistrates’ Court has acquitted a 45-year-old man who was accused of defaming PF deputy secretary general Mumbi Phiri in a WhatsApp group.

In this matter, Asher Hakantu was accused of posting defamatory words against Phiri in a WhatsApp group called “We need a better Zambia” on unknown dates but between May 6, 2017 and May 8, 2017 in Lusaka.

“With intent to defame Mumbi Phiri, unlawfully did publish a defamatory matter concerning the said person on a WhatsApp bloc namely ‘We need a better Zambia’, to which you wrote, ‘Are you sure she didn’t sacrifice the innocent boy for her to come into a political limelight, who knew this finished scrap cargo before she lost her son in Kawambwa School accident. Apusa maningi Mumbi Phiri’,” read the indictment.

But when the matter came up for ruling on case to answer today, magistrate Nchimunya Simaubi set Hakantu free saying the prosecution team had failed to prove a case against him.

“It is alleged that the accused published defamatory matter via a whatsapp bloc against one Josephine Chilufya Mumbi Phiri. The evidence on record shows that the mobile number for the complainant was neither taken for digital forensics nor did Chief Ins Nyama tender it in evidence. However, the court was told that the alleged defamatory message was apparently deleted from the phone while it was in the custody of Chief Ins Nyama as per her evidence in cross examination. Two mobile phones, 12A and 12B belonging to the accused were produced. However, no defamatory messages were shown to the court from the two phones neither were they subjected to digital forensics. Chief Ins Nyama told the court that the phone allegedly used is said to have been destroyed,” magistrate Simaubi said.

“PW3, Joel Nawa told the court in cross examination that his report or findings are useless without digital forensics being subjected on the sending and receiving devices. He was categoric that anyone could have made the Facebook account for Asher Hakantu and not necessarily himself.”

Magistrate Simaubi said it would not be right to place Hakantu on his defence so that he could fill in the blanks for the prosecution team which conducted incomplete investigations.

“Therefore, it was critical to the prosecution for the digital devices to be subjected to digital forensic analysis to determine if at all the accused had originated the message complained of and published it on the whatsapp bloc. In this regard, it was the duty of the investigating officer, in this case, Chief Ins Nyama to provide the digital devices for the accused and complainant to be subjected to digital forensic analysis as advised by Nawa. By neglecting to do so, there was a dereliction of duty. This court cannot now be used to remedy this deficiency by placing the accused on his defence so that he fills in the gaps,” said magistrate Simaubi.

“Therefore, it becomes apparent that investigations into the matter were incomplete in that one essential element that the accused published the matter complained of has not been proved. The consequence being that the prosecution evidence has been so discredited that I, as a reasonable tribunal properly directing myself, cannot convict on it where the accused to remain silent. Further, this court cannot attempt to remedy this failure of the prosecution by placing the accused on his defence so that he supplies what the prosecution could not provide…therefore, I find that a case is not made out against the accused person sufficiently to require him to make a defense and I dismiss the case and acquit him forthwith.”