The State, through Chief Advocate Margaret Chitundu has made an application in the Lusaka Magistrates’ Court to institute contempt proceedings against NDC leader Chishimba Kambwili saying tampered with evidence before the court.
But Kambwili’s lawyer Keith Mwemba has asked the court to throw out the state’s application saying the court has no jurisdiction to entertain such a matter.
He has argued that there’s no such procedure in the subordinate court where the state can make an application for contempt under section 116 of the Penal code.
Meanwhile, Lusaka principal resident magistrate David Simusamba has asked the state to bring the said complaint before him and if he is satisfied, the matter shall be allocated to a different magistrate to hear the alleged complaint.
This is in a matter in which Kambwili is facing a three counts of forgery, uttering false documents and giving false information to a public officer.
When the matter came up before magistrate Simusamba, Wednesday, Chitundu made an application on behalf of the state against Kambwili saying he had committed contempt by tempering with the evidence before the court.
“Application for contempt proceedings pursuant to section 116 of the Penal code. Our application is that the accused has committed contempt before this court. We have two witnesses. The nature of the contempt relates to the accused tempering with the evidence before the court,” she said.
However, the court guided Chitundu that the state should have used section 90 of the penal code as opposed to using section 116.
And Kambwili’s lawyer Keith Mwemba argued there was no such procedure in the subordinate court where the state could make an application for contempt under section 116.
“The application is made persuant to 116 of the penal code. There is no such procedure in the subordinate court where the state can make an application for contempt under that section. The state has stated that the nature of contempt relates to forgery or tempering with the evidence before this court. Clearly the state is inviting this court to assume jurisdiction which it does not possess. The court is being invited to entertain an application which it has no jurisdiction to entertain. The proper procedure is to report the matter to law enforcement and they will investigate the matter,” he said.
“You cannot entertain this application. The procedure is well spelt out on what should be done. Even if it was anchored on section 90, this court would have no jurisdiction. There is simply no application before you. This court has no jurisdiction and therefore you should refuse it and throw out the application.”
But in response, Chitundu submitted that she would adopt section 90 as guided by the court.
“Even though the state had initially relied on section 116, the court did guide us that the correct procedure should have been under section 90 and we wish to follow that guidance of the court,” she said.
Meanwhile, magistrate Simusamba said after considering the application made by the state, he was shocked that there was nothing in the defence objection that was substructure on his guidance.
“In the morning Mrs Chitundu made an application before this court on behalf of the state to institute contempt proceedings under section 116 of the penal code cap 87 of the laws of Zambia. The application was necessitated by representatives that the accused was interfering with the evidence and witnesses. She called upon me to hear the matter this morning as she had already lined up two witnesses to testify to the contempt. As she begged to move and in considering the nature of the application or the allegations, I did give guidance to her that the proper procedure to follow in that course was for the state to institute proceedings in accordance with section 90 (2)of the cpc cap 87 of the laws of Zambia,” he said.
“Mr Mwemba on behalf of the accused objected to my guidance saying it was wrong and instructed that they go on record in response to the application. This I grunted despite my endeavour to explain to him that we needed to waste no time as the application was merely procedural. Now, I have considered the application by the state and the objection by the defence. What has surprised me is that there is absolutely nothing in the defence objection that is substructure on my guidance. That the state follows the procedure under section 90. In fact they do agree that this is the correct procedure.”
Passing his ruling, magistrate Simusamba asked the state to bring the said complaints before him saying if he was satisfied with the complaints, the matter would be allocated to a different magistrate.
“I feel it fit to guide here as follows; The state shall bring a complaint before me summarising the facts of the alleged complaint. This they can do by calling on one or more of the persons upon whom it is alleged the contempt is connected with to either verbally complain before me or reduce the same in writing. Upon perusal of the complaints and if it shall be satisfactory to me, in this matter I shall admit it and then either draw up the charge myself and sign it or ask direct the state advocate or police officer as the case maybe, to draw up and sign the charge. The matter shall then be allocated to a different magistrate to hear of the alleged contempt,” said magistrate Simusamba.
He adjourned the hearing of the main matter to May 3.