LUSAKA magistrate Jennipher Bwalya has referred the case in which PF information and publicity chairperson Raphael Nakacinda is charged with defamation of the President to the Constitutional Court for determination of constitutional issues.
Earlier, Chief Resident Magistrate Dominic Makalicha recused himself from handling the case on professional grounds.
Nakacinda is facing one count of defamation of the President.
It is alleged that Nakacinda, on December 13 , 2021 in Lusaka, with intent to bring the name of Mr Hichilema into hatred, ridicule and contempt, did cause to be published defamatory matter by word of mouth, where he addressed people at the High Court of Zambia, which was also broadcasted by Muvi Television that His Excellency President Hakainde Hichilema had summoned Judges at his private residence intimidating and coercing them to frustrate PF legal battles.
When the matter came up for commencement of trial before magistrate Makalicha, he informed parties in the matter that he was recusing himself from handling the matter on professional grounds .
He then re-allocated the matter to Magistrate Jennipher Bwalya.
And before Magistrate Bwalya, State prosecutor Abraham Ngozoh applied to have the charge sheet before court substituted.
Ngozoh told the court that the state was ready to commence trial with five witnesses already lined up.
But defence lawyers, Makebi Zulu and Jonas Zimba, said they had no objection to the application to substitute the indictment but had an application to make before the accused could to take a fresh plea.
Zimba asked the court to refer the matter to the Constitutional Court to answer the question as to whether the provisions and the offence created under section 69 of the Penal Code Chapter 87 of the Laws of Zambia was in conflict with the provision of Article 8 (d) of Act number 2 of 2016.
He said the Article talks about national values and principles and exposes the principle of equity, social justice, equality and non discrimination.
“Your Honor, the issue we have raised is constitutional in nature and going by Article 28 (2) and Article 128 (2) of the constitution. We are not able to argue the said Constitutional issue before this court for the reason that the Constitution itself doesn’t dictate the correct forum before which such an application ought to be made,” he said.
Zimba said the court would note that on answering the question put before it, issues of Article 98(4) of the Constitution relating to the immunity of the President and the participation of the President in court proceedings would arise, which could only be properly handled either by the High Court or Constitutional Court.
He stated that Article 8, 9 and 98 (4) of the Constitution in so far as the same related to section 69 of the penal code created a great grey area under the new constitution in the political dispensation.
Zimba told the court that the question was neither frivolous nor vexatious and was a proper question for purposes of firstly, preserving and upholding the rights of citizens in a democratic society and secondly, the development of our jurisprudence as a democratic society.
He said it was also to help to provide a sustainable avenue of effective checks and balances.
Zimba said having a matter continue before the magistrates’ court while the same matter was being considered by the Constitutional Court was irregular and did not go to serve the rule of justice as it might result in the waste of judicial resources.
And in his submission, Zulu said section 8 (2) of the Constitution Court Act no.8 of 2016 made it mandatory for the court to refer the question emerging to the Constitutional Court or High Court.
Zulu said the law made it mandatory that when interpreting the Constitution, the values must be taken into consideration.
He said that the preliminary issue raised had never been tested by the higher courts and their application would be the first of its kind.
But Ngozoh opposed the application to stay proceedings, saying there was no harm with the issue being referred to another court but that it did not call for the matter to be stayed while waiting for the outcome from the High Court or Constitutional Court.
“We don’t object to this matter being referred to the High Court or Constitutional Court but, we ask that the accused person takes plea today,” he said.
In her ruling, Bwalya granted the application to refer the matter to the Constitutional Court .
She, however, adjourned the case to January 28, 2022 for ruling on whether the matter before her would continue while it was also active in another court or not.
“Having heard the question from the defence and that there has been no objection from the State, I allow the application to refer the matter to the Constitutional Court,” said Bwalya.
Magistrate Bwalya then explained the charge to Nakacinda but told him that he would only plea before a competent court after her ruling on January 28, 2022.