New Labour Party leader Fresher Siwale has applied for an interim order in the Lusaka High Court to stay the criminal proceedings in which he is accused of defaming the President, saying if not halted, he may be convicted on an offence which may subsequently be declared unconstitutional.
Siwale wants the criminal proceedings in the Lusaka Magistrates’ Court to be halted pending hearing of an application to review the court’s refusal to refer the matter to the High Court for Constitutional reference.
In the case before the Lusaka Magistrates’ Court, Siwale is charged with defamation of the President.
It is alleged that on April 22, last year, Siwale with intent to bring the President’s name into ridicule, said President Edgar Lungu is not Edgar Chagwa Lungu but Jonathan Mutawale and that he should be arrested for having three National Registration Cards and that he is an identity thief.
But Siwale, through his lawyers Keith Mweemba and Gilbert Phiri, has filed an affidavit in support of ex-parte summons for interim order of stay of criminal proceedings pending hearing of review application.
Siwale explained that trial had started before the lower court with seven witnesses having testified.
He stated that on August 13, this year, while cross examining the seventh witness, Mweemba applied for constitutional reference to the High Court but it was dismissed and the court ordered that trial proceeds.
Siwale stated that on September 17, his lawyers lodged an appeal against the ruling dismissing the application for Constitutional reference.
He further stated that on October 9, this year, his lawyers made an application for stay of the criminal proceedings on the basis that the appeal had been lodged and the matter was now in the High Court, and should be allowed to be determined on its merits.
He stated that the court denied the application for stay on the basis that a constitutional reference was not an interlocutory application and could not halt criminal proceedings and that an intention to appeal could never stay proceedings.
Siwale contends that it was imperative that the proceedings in the lower court be stayed to enable the record to be typed and remitted to the High Court unhindered and for the constitutional review application to be heard.
“In the absence of stay of the criminal proceedings, it is highly likely that I may be convicted on an offence that may subsequently be declared unconstitutional or the proceedings may otherwise come to a close,” he stated.
Meanwhile, President Edgar Lungu’s former Ishuko Primary School teacher in Kitwe’s Chimwemwe Township, has told the Lusaka Magistrates’ Court that he cannot remember any pupil by the name of Jonathan Mutawale in his class.
The State witness said when the matter came up for continued cross examination before magistrate Alice Walusiku that when he taught President Lungu, he was 27 years old, while the Head of State was 13 years old.
The witness, who told the court that he is a Zimbabwe national, said he was not aware that during the period he taught the President, there were a lot of foreigners working in the mines in town.
Nelson Dhliwayo, a 76-year-old retired teacher had previously told the court that the Head of State was among the most brightest pupils in his class.
Trial continues on November 12.