LUSAKA Magistrate Jennifer Bwalya has warned that the State will be deemed to have closed a matter in which NDC leader Chishimba Kambwili is accused of expressing racial remarks against an Indian national should the matter not proceed at the next sitting.
Magistrate Bwalya also agreed with concerns by the defence that the matter has taken a year without any progress with only one witness having been heard from the Prosecution.
This was after Kambwili, through his defence lawyer Keith Mweemba ,objected to have the said matter adjourned to another date for a mention instead of continued trial, after noting that only one State witness had testified from November last year.
Mweemba also cautioned that if a nolle prosequi is entered in the matter by the Director of Public Prosecution (DPP), the defence shall oppose it.
This is in a matter in which Kambwili is charged with one count of expressing or showing hatred, ridicule or contempt for persons because of race.
It is alleged that Kambwili on February 19, this year, expressed racial remarks on Rajesh Kumar Verma, an Indian national.
However, when the matter came up yesterday for fixing of trial dates, the State suggested that the case comes up on another date for mention, but Mweemba objected to the State’s application to adjourn the matter.
“We can’t allow another mention. One year one witness, we can’t allow that. We shall be ready to proceed at the next date, let the State bring all the witnesses so that we close the matter,” Mweemba said.
He, however, told the court that as defence, they would not accept any attempt to enter a nolle prosequi by the DPP in the matter.
“What we are saying in this court is that any attempt by the State to come and enter a nolle proseque in this matter, we are going to oppose it. Any attempt to bring a nolle prosequi will be objected to,” Mweemba said.
But in response, State Prosecutor Noah Mwanza said the State was very surprised with the sentiments presented before the court by the defence, adding that as the record could speak for itself, the adjournments had never been only on the instance of the State.
“To say that the State has been adjourning the case since November last year which is an injustice to the accused person, that is not correct. The adjournments have been both at the instance of the State and the defence,” he said.
Mwanza said the adjournments on the part of the State, was because the witness suffered stroke, and he had travelled to seek medical attention.
“Surely, when a witness has suffered stroke and is unable to come, is it an injustice to the accused, not at all,” he said.
And on the issue of the nolle prosequi, Mwanza said there was no need for the court to dwell on speculation.
“Since it’s speculative, we won’t dwell on it. But suffice to State that the defence cannot tell the DPP on how to conduct the criminal prosecution. If the DPP decides to enter nolle, the Constitution allows any aggrieved party to challenge it,” he said.
In her ruling, Magistrate Bwalya rejected the application to have the matter adjourned for a mention and ordered that the date for continuation of trial be set.
“Having heard both the Prosecution and the defence on the State’s application to adjourn this matter for mention and for trial dates instead of setting a date for continuation of trial and the defences objection to such application, I hereby order that the date for continuation of trial be set today,” she said.
Regarding the other arguments and submissions concerning the issue of the nolle prosequi, among others, Magistrate Bwalya said these were issues brought in a vacuum and can only be dealt with by the court when presented with facts inviting the court to make any such pronunciation.
She, however, agreed with the defence that this matter has taken a year without any progress with only one witness having been heard from the Prosecution.
Magistrate Bwalya also agreed with the Prosecution that the responsibility for the adjournments was shared between both the State and the defence.
She there warned the State that should the matter not proceed on the said date, the State would be deemed to have closed the case.
“However, I must make mention that such delays have dire consequences not only to the accused but also the State. I therefore urge both parties in these proceedings to show more seriousness in the Prosecution of this matter where the accused is innocent until proven guilty and whose liberty of incarceration remains hanging until the matter is concluded,” Magistrate Bwalya said.
“I now order that a date be set for continued trial and warn the State that should the matter not proceed on the said date, the State will be deemed to have closed this case.”
She adjourned the matter to December 2, 3 and 4 this year, for continued trial.
In November last year, ZNBC reporter Mark Ziligone testified that on February 19, last year, a video of Kambwili allegedly uttering racial remarks against an Indian national who was operating a road compactor went viral on social media.
He added that the said video was on different Facebook sites like Zambia Reports and others.
Ziligone said after he saw the said video, he presented it as a news idea to his assignment editor and afterward carried out an investigation to establish where the incident happened.
He said he tried to get hold of Kambwili to get his side of the story but his phone went unanswered, but added that he managed to get a reaction from Chief Government Spokesperson Dora Siliya who condemned the incident.
But in during cross examination earlier this year, Ziligone admitted that Kambwili as a leader of the opposition, had a right to criticise the government of the day in order to offer checks and balances.
He also agreed that there was nothing wrong for Kambwili to remind government about proper investment or foreigners taking up jobs belonging to Zambians.