Lusaka Magistrate Alice Walusiku has refused to halt the proceedings in a matter in which New Labour Party Leader Fresher Siwale is accused of defaming the President, saying no interlocutory application can stay proceedings in a criminal matter.
This was after Siwale’s lawyers asked magistrate Walusiku to stay the criminal proceedings because of their intention to appeal against her refusal to refer the case to the High Court to determine the constitutionality of the trial before court.
In this matter, 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’.
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 Siwale’s 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.
But magistrate Walusiku dismissed the application, saying there was nothing warranting her to refer the matter to the High Court because there were cases where such issues were raised and the High Court sent them back to the lower court to proceed with trial.
However on September 17, Siwale’s lawyers filed a memorandum of appeal in the Lusaka High Court, to appeal against magistrate Walusiku’s ruling on three grounds.
The grounds of the appeal are that the learned court below erred in both law and fact when it dismissed Siwale’s application for constitutional reference when the application was neither frivolous nor vexatious, and further that magistrate Walusiku erred in both law and fact when she delved into and determined the merits of the application for Constitutional reference.
When the matter came up for continued trail yesterday, Public Prosecutor Abraham Ngozo informed the court that the State was ready to proceed with trial.
But Siwale’s lawyer, Mweemba, told magistrate Walusiku that the defence had earlier communicated with the State that they were not going to proceed with trial yesterday as they wanted to make an application to stay the criminal proceedings before court.
He said the application was because the defence had filed a notice of appeal and memorandum to the High Court after being dissatisfied with the court’s ruling.
In response, Ngozo said having not received the said appeal on their record, the State was still insisting that they proceed with trial.
In her ruling, magistrate Walusiku dismissed the defence’s application, saying no interlocutory application could stay the proceedings in a criminal matter.
She further said the defence may continue to argue their appeal, but added that the criminal proceedings would continue.
“No interlocutory application in a criminal matter can stay the proceedings in the main matter. It is for this reason that the defence may proceed to argue their appeal with regards to the interlocutory application whilst the criminal matter in the main case will continue in this court. The application is therefore denied,” magistrate Walusiku.
At this point, the defence asked for an adjournment to seek further instructions from their client in view of the court’s ruling.
Trial continues on October 14.