In this verbatim, Muvi TV director of programs Mabvuto Phiri narrates how New Labour Party leader Fresher Siwale branded President Edgar Lungu an identity thief on The Assignment, with the aide of some scanned identification and voter’s cards.
This is in a matter in which Siwale is charged with Defamation of the President for alleging that President Lungu’s real name is Johnathan Mutaware and that the real Edgar Lungu died a long time ago.
Below is a verbatim report of the commencement of trial:
State: Can you tell us your name, age, residential address and occupation?
Mabvuto Phiri: Mabvuto Phiri, 34 years, house number 110 Lukasu road in Rhodepark. I’m a journalist at Muvi television.
State: Muvi television, where?
Phiri: In Lusaka. I’m the producer of The Assignment and director of operations.
State: You indicated that you are the producer of The Assignment, can you spell out your duties.
Phiri: I generate and supervise the production.
State: Just tell the court where do you conduct The Assignment program?
Phiri: It’s a live studio based program that looks at news and current affairs. It comes every Sunday at 19:30.
State: Are you able to tell the court Muvi coverage.
Phiri: Muvi television is a national broadcaster with presence in all parts of the country.
State: How many people view Muvi television.
Phiri: Muvi is a subscription [based station] meaning people who view it have to pay subscription. Therefore, it depends on how many people are subscribed at that period. This moment about 20,000 are subscribed.
State: 22 April, 2018, where were you?
Phiri: On 22 April, I was at Muvi television like any other Sunday for The Assignment program. And on this day we had invited the New Labour Party leader Fresher Siwale to discuss a topic ‘is President Edgar an identity fraud?’. He came through to the studio in readiness for the program but before the program could start he requested that I help with the scanning of two documents that he had in his possession. One was a photocopy of a registration card and the other one was a voter’s card. It looked like a voter’s card.
State: So you cannot tell that it was a voter’s card it looked like a voter’s card?
Phiri: It looked like a voter’s card. After scanning, he got them and kept them. He withdrew them in readiness for the program and at exactly 19:30 the program started.
State: What was your role in this program?
Phiri: Like I indicated, I supervise and monitor the program through out. I was directing and monitoring in terms of the proceedings of the programs.
State: In this case who invited Mr Fresher Siwale?
Phiri: Of course it’s me the producer.
State: Who coined ‘Is Edgar Lungu an identity fraud’?
Phiri: It was me as the producer.
State: Are you able to tell the court if there is a background to the coining to such a topic.
Phiri: The topic had been coined in this manner because media platforms and social media had been dominated by such a discussion during the course of the week. It was propagated by the guest that we had invited, the New Labour Party leader Fresher Siwale. What we had done when the program started, I had prepared three clips: one video involved two Southern Province chiefs named Chief Mukuni and Chief Hamusonde. In that clip, they were challenging the Head of State to come out in the open and respond because the New Labour Party president was in public space propagating that President Lungu is not actually President Lungu but Jonathan Mutaware. The second clip contained Muvi TV Friday’s news in which it featured Traditional Affairs Minister Lawrence Sichalwe who challenged the chiefs not to be political. The final video was of President of the Republic of Zambia Mr Edgar Chagwa Lungu who during a party function on the Copperbelt said he was aware that there was an issue in the public space but it should be ignored.
State: What do you mean? He talked about what?
Keith Mweemba (interjects): This witness is giving reported speech of what the President said.
State: The President had indicated that there was this issue in the public space…
Phiri: And it should be ignored. From there we came to the studio and introduced our guest to the public through live television.
State: How was the structure like in the studio?
Phiri: Our studio is downstairs. In the studio, there were four people. Master Chimbala who was interviewing the guest, there was a camera person and Obvious Kapunda and the guest Mr Fresher Siwale. I was in the director’s room. Where you are monitoring what’s being captured.
State: How many were you in the director’s room?
Phiri: We were three.
State: What happened on that day?
Phiri: The program started. Of course the guest was giving his views on the subject matter. He was trying to amplify what he was propagating. He persistently referred to the President as an identity fraud and at one time during the program he requested for the two documents which had been scanned from the control room. He spoke on the two pictures. He was giving comparisons on the two pictures and the other details on the documents. On the documents which looked like the voter’s card it had Lungu Edgar C and on the voter’s card it was Edgar Chagwa Lungu. He was making comparisons to justify what he was propagating. On live TV, he had a paper which had numbers written and the registration card number.
Phiri: The program continued and he continued propagating. After an hour and seven minutes, the program came to an end. In the transmission room there’s a desktop computer it had a software called capture box. The way the machine is connected, it is connected in such a way that whatever is live on TV is recorded. The program is saved and reserved in that computer for a period of three months because it’s a requirement for any broadcasting authority that all live programs are recorded failure to that we face sanctions. We keep that footage for three months and after that we can take it in the library or anywhere else.
State: What happened later on?
Phiri: There was a request that was made by the Zambia Police service through the office of the director of administration Alfred Tembo. That Zambia Police wanted a program that I had aired that it had become a subject of investigation. They came the following day on Monday after the program had been aired. Mr Tembo requested from me. The footage that is recorded on that computer is in real time.
State: As you had that request from Zambia Police what did you do?
Phiri: I facilitated for the production of that DVD and it was burnt and I gave it to the Zambia police.
State: You had indicated that you yourself invited Mr Siwale. Where is Mr Siwale today? Point at him.
(Phiri steps out of the witness stand and points at Siwale).
State: You had indicated that you burnt the documents which the police had requested for on a DVD. If I was going to show you the DVD today are you going to identify it?
Phiri: It’s local Muvi television. I had put a full stop before the ‘a’ on Assignment. There’s the name of the program ‘Assignment’ and it is signed.
State: Those are the features. What does the DVD contain? Which clips are there?
Phiri: The Assignment program that was recorded on that particular day and the three video clips.
State: You indicated that you produced this document through the desktop in the controlling room. How is the condition of that computer?
Phiri: It’s an active computer.
State: Are you able to tell the court if the information can be manipulated? Tell the court the security features.
Phiri: On that computer there’s no editing system and no one can access from outside. Also it comes out as it is recorded.
(Phiri is given the DVD to identify the features he mentioned earlier)
Phiri: This is the DVD that I produced. This is the local Muvi TV (symbol) I was talking about, then this is the signature.
(Magistrate Walusiku directs that the DVD is played and the video is viewed. The full Assignment program is viewed.)
Mweemba objects after viewing video: We are objecting to the admittance of the video into evidence because having viewed the contents from beginning to the end, including the items DW1 (Phiri) did not talk about. And this prejudices the accused person and may effect amount to a mistrial. There are already issues that this witness is on record as having testified that this DVD (ID1) is intact and not edited. Clearly we have seen portions which were cut short in the midst signifying that it is edited and able to be edited. The witness has not told the court the model of the computer that he used and the frequency of service of this work station. The witness has not explained to the court the scientific method that he used to produce ID1 from the work station. He hasn’t explained. How was production done? What did he do to create ID1 from the so called computer before finally producing ID1 without compromising the contents on the computer. In short, the rules of the computer generated evidence have been breached. He was supposed to demonstrate further that the contents are as they purport to be what they are. We have been told this ID1 passed through different hands. It’s supposed to be well kept in the custody of the producer because a DVD can be manipulated, edited. He hasn’t told the court the type of DVD that he used because there are DVDs that are writable or non writable. It is subject to manipulation to suit the interest of whoever is a custodian. DW1 told the court that he took the DVD to a member of Muvi television and subsequently there was a movement from him to another of Muvi television and then to a member of Zambia Police. Therefore, the custodian of ID1 is Zambia police. This DVD is in a sub category of scientific evidence which can fall under the five categories of evidence. What is in this court to eliminate the danger of manipulation by the custodial who is Zambia Police, who arrested the accused? There has been no evidence that has been brought to this court with unbroken seals meaning this evidence wasn’t sealed. Two, it has been brought to court just like this who carried it, witness, prosecutor or arresting officer? So the danger of manipulation has not been excluded. This is scientific evidence is this witness an expert or simply been brought as a journalist? What instrumentaries did DW1 use to produce ID1 from its original source? This court has not been told. The witness attempted to explain something but was curtailed by the PP. He attempted to explain how the machine operates but was curtailed. We are told that they keep these records for three months to avoid falling file of the broadcasting authority. Primary evidence is on that computer, this DVD is secondary evidence. If this is secondary evidence what are the rules? Secondary evidence cannot be produced in the court of law when the original is in existence. If the state wishes to rely on ID1 as evidence, a secondary copy cannot be produced as evidence unless it is shown to the court that the original is lost, it cannot be found or is indeed in the hands of a stranger. Therefore they cannot come to court when the original is in existence. It is also important that the scientific criteria be explained. The witness has also not told the court if the computer has built in safeguards to ensure accuracy. There has been a somewhat relaxation of the rules of the computer generated evidence. Zambia is a common law jurisdiction and the constitution is clear in Article 7 of the laws of Zambia. We are a common law jurisdiction. Therefore, the state must bring the original evidence which is readily available.
Gilbert Phiri (defence lawyer): Just to retaliate the fact that viewing the video before its formal admittance into evidence is grossly prejudicial to the rights of the accused person. Further, in objecting to the production, the proposer (Mabvuto) has not informed this court and has in fact not identified computers that he used in generating ID1. Specifically, the serial numbers of the capture box and the computer has not been identified. And that is the only way we know these gadgets, by the serial numbers. Further in objecting to the production of this DVD, the court has not been told what version of anti virus is in use in these gadgets. On that score your honour the aspect of breach has not been negatived. It very unsafe for this piece of evidence to be admitted as evidence this this court. I think we were that this DVD length was 1hr 7mins, there is as an issue of the length of this DVD. The point we are trying to make is the the producer stated that the Assignment program runs for 1hr 30minutes therefore we cannot account for the the other 13 minutes. Why are the 13 minutes missing? The length of the program cannot be accounted for in this DVD. We object for ID1 to be admitted into evidence.
State: Looking at time, we feel that the objection which has been raised by the defence, your honour, we are not going to respond but tomorrow. We seek an adjournment for we have two days.
Mweemba: We have no objection to their prayer for an adjournment. But we wish to inform the court that we have an application to make. Our application is your worship to vary the bail conditions that were imposed by the court when granting the accused person bail. Your worship, if you look at the indictment, the accused is a leader of an opposition party and the charge that the accused is facing is Defamation of the President. This makes it almost impossible, we feel one of the conditions of bail which bordered on one of the sureties having come from government at a position of managerial or directorship, it is almost an impossibility your worship. This case has political connotations and a civil servant is inconsiderable. It is inconsiderable that a civil servant in government at a high level would feel safe to sign for bail to a person who is a leader of an opposition party. Especially that the nature of the nature of the charge itself is talking about the sitting head of state. Naturally people would develop cold feet and no one would to sign bail for him. This has actually made it impossible for him to come out on bail. We pray that you use your discretion to vary the conditions.
Magistrate Alice Walusiku: I have take note what has been said by the defence counsel for the court to vary bail conditions. The conditions that were given to the accused person where conditions by the court. If the accused person has failed to meet those conditions, the law provides that the accused person can apply to the court for the conditions to be varied and that can be done. If there is no such application, the court cannot know. However, the court must take judicial notice that the accused person is a leader of an opposition party and it will be difficult for him to find sureties which is not supposed to be the case. All accused persons are equal before the law. However, the point has been taken and I note that the accused person has proved that it has been difficult to come out from custody on bail. For this reason, the application to vary the bail conditions have been granted. The court grants the accused person bail in own recognizance with the sum of K25,000 with two working sureties from reputable institutions.
Matter adjourned to June 6 and June 20 for mention and continuation of trial on July 5.