LUSAKA principal resident magistrate Jennifer Bwalya has reserved a ruling on whether or not to refer Raphael Nakacinda’s defamation of the President case to the Constitutional Court to determine whether President Hakainde Hichilema enjoys immunity of contempt of court by commenting on his case which is in court.
This is in relation to the President’s remarks in which he said Nakacinda needed to pay the price for the remarks he made that he (the President) was calling judges to his Community House.
“We should not arrest people based on social media stories. We should investigate. We should not arrest people based on falsehoods. That is an era of the past. Social media is good but it is also being abused. Should we believe what Nakacinda said that HH called judges to his house and told them to manage a matter in a certain way? I never called any judges to my house that is a lie. So why should we promote lies in our country? Nakacinda said he had evidence that he had seen in his binoculars that I had called judges. Under the rule of law Nakacinda must pay the price because he lied to the nation. When Nakacinda is arrested some of you will say HH is abusing his Presidential powers,” the President said.
Earlier in court, Nakacinda through his defence lawyer Makebi Zulu asked the court to refer his defamation of the President case to the Constitutional Court for determination on whether President Hichilema enjoyed immunity of contempt of court by commenting on a case which was before court.
In this matter, it is alleged that Nakacinda, on December 13, 2021 in Lusaka, with intent to bring the name of President Hichilema into hatred, ridicule and contempt, caused 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 continued trial, Zulu argued that the President during a press conference made a statement that was prejudicial not only to the proceedings before court but to the accused person as well.
He submitted that the statement by the President was that Nakacinda said he (the President) was calling judges to his house, after which the Head of State said “Nakacinda will pay for such [a] lie”.
Zulu argued that the President was referring to a matter which was before court and it was his view that the separation of powers should be respected.
He said President Hichilema swore to protect the Constitution, the Constitution that ensures the protection of people’s rights, and it was also his duty to protect the Constitution and promote the rights and freedoms of citizens.
“Even if he was injured, he had no right whatsoever to comment on a matter that was in court. He has no right to convict any person and using his opinion to the extent of saying that the accused person will pay. Such a statement coming from a person who is the number one citizen of the nation, a person who attracts so much authority gives an indication that justice may not be done in the interest of the accused,” Zulu said.
He said he was aware that the President was clothed with immunity, but that immunity was immunity from prosecution and not immunity from breaching the Constitution.
Zulu however acknowledged the fact that the court’s hands were tied to decide on the application, the reason why he was asking it to refer the matter to the Constitutional Court.
“It’s our application that this matter be referred to the Constitutional Court to deal with that aspect that whether or not the immunity of the President extends to interfering with the court proceedings,” he said.
But in response, the State urged the court to dismiss the application, saying there was nothing for the Constitutional Court to determine.
State prosecutor Martin Mayembe said the issues that Nakacinda wanted to raise were already determined by the courts.
He added that there was no contempt of court that was committed by President Hichilema for the court to start dealing with that matter.
Magistrate Bwalya reserved a ruling to May 20.