A Chisamba based magistrate sitting in Lusaka, Susan Mangalashi, has thrown out all the applications by magistrate Maggie Tantameni, who is facing criminal charges, saying they are misconceived.
And Tantameni and her co-accused have pleaded not guilty to stealing 34 Kilograms of ephedrine valued at K1,870,000, property of government.
In this matter, Tantameni is jointly charged with Felix Mkandawire, a court interpreter, Francis Mphanza, a senior public prosecutor and Didie Kangwa, a senior clerk of court with three counts of abuse of authority, removal of property under lawful seizure and stealing by persons in public service.
In count one, it is alleged that Tantameni and Mphanza on November 8, last year, in Lusaka being persons employed in the public service as margistrate and senior public prosecutor respectively, jointly and whilst acting together, did use the position of their respective offices to obtain property, profit or benefit for themselves or another.
In count two, it is alleged that Mkandawire, Mphanza and Kangwa on November 8, last year in Lusaka, jointly and whilst acting together knowingly and with intent to hinder or defeat the process, did conceal 34.0 kilograms of ephedrine valued at K1, 870, 000. The ephedrine was taken under the process of authority of the court of Tantameni.
And in the third count, it is alleged that Mkandawire,Mphanza, Tantameni and Kangwa between November 8, 2017 and December 30, 2017 in Lusaka, being employed in the public service as court interpreter, senior public prosecutor, magistrate and senior clerk of court respectively, jointly and whilst acting together did steal 34. 0 kilograms of ephedrine. The drug was valued at K1, 870,000 the property of Government of the Republic of Zambia which came into their possession by virtue of their employment.
Magistrate Tantameni through her lawyer, had asked the court to refer her case to the Constitutional Court in order to determine whether she could be tried by a court of equal jurisdiction.
Her lawyer, Prosper Muyatwa had further submitted that the Constitutional Court should render it’s opinion on whether the Chief Resident Magistrate Kenneth Mulife, who is the complainant in this matter on behalf of the Judiciary, could allocate the case to a Chisamba based magistrate Susan Mangalashi, who was also a magistrate like herself.
Muyatwa had further argued that Mangalashi was not in a position to impartially and justiciably dispense justice to try Tantameni in the state she was in, adding that it was a serious misdirection because her immunity must first be lifted.
But when the matter came up for ruling, Tuesday, magistrate Mangalashi, dismissed all the applications saying they were misconceived.
She said whilst it was true that judges and magistrates had immunity from acts done during their judicial function, that immunity was not absolute.
Magistrate Mangalashi stated that where an impropriety had been committed of the nature of criminal conduct which may include violations of the law, breach of court rules, abuse of office or interfering with the flow of justice, then such immunity could not stand.
She said the Judicial Service Commission Regulations Act talks of the institution of criminal prosecutions against erring judicial officers and the suspension of any disciplinary proceedings until the final determination of criminal charges.
She added that this showed that there was no requirement that before a magistrate could be prosecuted before a criminal court, they must be dismissed first or have their judicial immunity lifted.
Magistrate Mangalashi ruled that the application by Tantameni’s counsel was misconceived and it was not a case to be referred to the Constitutional Court.
“A3 has been charged with the criminal offence, she is appearing as an accused person who can be tried by this court. A3 is not charged with any capital offence which will not require me to hear the matter. I have all the jurisdiction to hear the matter,” she said.
She further ruled that the issue of unfair trial does not arise because magistrate Mulife allocated the case to her and did not hear the matter.
“Counsel’s application for the matter to be referred to the High court is denied in that the Chief Resident Magistrate allocation and transfer of the case are administrative in nature not adjudicative and do not in any way prejudice A3’s right to a fair trial. It has been the practice that where a magistrate declares interest or there is risk of partially or prejudice to an accused, a magistrate from a different station or district maybe be brought to try the matter,” ruled magistrate Mangalashi.
In taking their pleas, Tantameni and her co-accused denied all the charges.
Trial will commence on December 18, 2018.