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Court revokes arrest warrants issued against Kamanga, 5 othersBy Natasha Sakala on 26 Mar 2020
The Lusaka Magistrates’ Court has revoked arrest warrants issued against Football Association of Zambia president Andrew Kamanga and five others for failure to appear for a contempt matter last Friday after they explained that their absence was a result of not receiving summons.
Meanwhile, the Ndola High Court has stayed contempt proceedings against Kamanga and six others.
Lusaka Chief Resident Magistrate Lameck Mwale had earlier set April 22, 2020 as the date for ruling on whether or not the court has jurisdiction to hear contempt proceedings in a matter that is active before the Ndola High Court.
This is a matter in which Damiano Mutale and Patson Lusaka dragged Kamanga and six others to court for allegedly breaching a court order.
It is alleged that Kamanga was served with a court injunction, ordering that the electoral process at FAZ be stopped, but still went ahead with them between March 12 and March 15, 2020.
Last week when the matter came up, Kamanga and five others were not before court, prompting the court to issue arrest warrants against them.
Only FAZ secretary general Adrian Kashala was in court.
Particulars of the offense are that Kamanga, Kashala, Ronald Hatoongo, Steve Nyondo, Alistair Kaleji, Bazolo Mseteka and Christopher Munachuka, on dates unknown but between March 12 and March 15, 2020 in Lusaka, jointly and whilst acting together with other persons unknown, committed contempt of court by proceeding to hold and conduct the FAZ electoral process and elections in breach of the court order dated March 11, 2020, contrary to Section 116(1)(i) of the Penal Code Chapter 87 of the Laws of Zambia.
When the matter came up before Chief Resident Magistrate Lameck Mwale for return of bench warrants, defence counsel Chifumu Banda, State Counsel, made an application that the court should make a ruling on whether it has jurisdiction to hear a matter that is active in the High Court and also one that happened in another jurisdiction.
“The ex-parte order was made…on 11th March 2020. What it says is that these people are in contempt, they have breached, disobeyed the order of the High Court. It being a civil matter, if there is a disobedience in the High Court in a civil matter, the person who has a complaint applies for leave to issue proceedings of contempt against the alleged contemner, especially bearing in mind that the matter is still active and is coming on 6th April 2020 at 11:30 hours for inter-parte hearing. The question that begs on us now is why should the two courts be involved in one matter? What happens if they are conflicting rulings between this honourable court and the High Court?” Banda asked.
He added that contempt was against a ruling in the High Court and, therefore, the contempt proceedings should also be done in the High Court.
Banda further said the injunction that was granted by the Ndola High Court and contempt proceedings cannot be in Lusaka unless the court had extra-territorial jurisdictions as the affidavit was clear that the matter was filed on the Copperbelt.
“The parties that have been cited for contempt here are not privy or are not party to the civil case in Ndola, except the second accused. These are people who were not aware but they are now being cited for contempt over a matter they are not aware of because they never appeared in court. The matter in Ndola is between Damiano Mutale and Patson Lusaka against Adrian Kashala and the Football Association of Zambia. So the rest are not part of the matter. I am submitting that if there was any contempt therefore, that is a proper matter to have been handled by the High Court. The case has special jurisdiction, the courts, the magistrates are given specific jurisdiction which attaches to their province. So this court is for the Lusaka district, contempt happened in Ndola. Is it possible for this court to have extra-territorial jurisdiction?” Banda further submitted.
However, Magistrate Mwale argued that the indictment stated that the contempt happened in Lusaka, to which Banda said perhaps, it was faulty.
Prosecutor in the matter, Gilbert Phiri, in response to the application made by Banda, said his team should be allowed to file a comprehensive argument in rebuttal to the claims raised by the defence, noting that no single authority, apart from the white book, which is only applicable to the High Court, was referred to.
Magistrate Mwale then asked the defence to file their written application on March 31, 2020 and the prosecution to file their arguments on or before April 8, 2020.
And in returning the warrants, Kamanga and the five others said they did not appear before the court on March 20 because they were all not served with the summons and were only made aware of the proceedings by Kashala after the proceedings on Friday.
But Magistrate Mwale warned the accused that necessary action would be taken against them should they abscond court proceedings next time.
He further warned lawyer Billingtone Mosha against representing an accused without getting instructions, as that was against legal ethics.
“I have carefully considered the explanations tendered by the six accused persons in exculpation of their failure to attend court on the 20th of March 2020. What is clear to me is that the accused persons may not have been personally served the summons to appear before court but they were fully aware of these proceedings. Clearly, it’s a demonstration of discourtesy of court, considering that these are criminal proceedings and strict rules of procedure must be adhered to. I shall give the accused persons a benefit of doubt and a strict warning that should there be such conduct in future, this court shall not hesitate to take appropriate action,” said magistrate Mwale. “May I also put it to counsel who appeared on behalf of the accused on the 20th of March 2020 against breaching ethics by representing an accused person who has not personally given an instruction. My view is that such conduct should not be allowed as the action of the counsel clearly was out of order. Having said that, I revoke the warrants of arrest in respect of accused number 1, 3, 4, 5, 6 and 7.”
The matter was adjourned to April 22, 2020 for ruling and possible plea.
However, later, yesterday, Ndola High Court judge Mary Mulanda stayed the contempt proceedings following an application by Kamanga and others.
“Upon reading the affidavit and upon hearing counsel for the defendant, it is hereby ordered that the current contempt proceedings at the Lusaka Magistrate court involving the matters of The People vs Andrew Kamanga and others are hereby stayed pending the determination of a similar application filed before this court by the plaintiffs,” stated judge Mulanda.
About Natasha Sakala
Natasha Sakala draws inspiration from people who stand up for what is right. She is very versatile and likes to bring out issues as they are.
Email: natasha [at] diggers [dot] news
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