MAGISTRATE Chrispin Hapungani has recused himself from handling a matter in which Mwewa Chitambala has been dragged to court by former president Edgar Lungu’s daughter, Tasila, on libel and cyber bullying charges.
This was after Makebi Zulu, who is representing Tasila, raised a concern over the manner in which bail was granted to Chitambala following his arrest on Thursday after a court order.
This is a matter in which Chitambala, commonly known as Simon Mwewa, is charged with one count of libel and another count of cyber bullying.
In the first count, Chitambala is alleged to have on September 15, 2021, in Lusaka, published on his Facebook page a story entitled “The Former President’s Daughter” where he stated that “Tasila Lungu is being investigated for suspicious purchase of a named bank together with all the assets worth 300 million. Everyone from Eagle One to the average councilor was stealing in a big way during the Patriotic Front’s iron rule. The sheer number of multiple cases involving government officials in the PF administration might derail Double H7s goal of placing our country on a better footing. This is just the tip of the iceberg. The PF was a criminal organization and they are in no moral position to provide checks and balances, I propose that the party be deregistered…”
The said words are said to be untrue, defamatory and intended to bring the name of Tasila Lungu into hatred, ridicule, contempt and suggesting that she was engaged in illegal activities when the same was not true.
In the second count, it is alleged that the words published were an attack on Lungu and were published for purposes of launching an attack on her using the cyber space without any lawful authority or reasonable cause to do so.
When the matter came up for plea, Friday, Zulu applied for the magistrate to recuse himself and send the matter for reallocation.
He argued that the warrant of arrest against Chitambala was issued on October 4, but was only executed on October 7 when Chitambala was apprehended so that he could be presented before court on October 8.
Zulu alleged that after Chitambala’s arrest by a named Inspector Kombe, some phone calls were made where it was then ordered that Chitambala be taken to court and have his bail processed.
He wondered why the accused could be granted bail without a formal application on record and in the absence of the prosecution.
“The accused having been brought before the court, the record will show that there was no formal application for bail on the court record. Secondly, that the prosecution was not present. Thirdly, that the matter was in chambers and present only was the court, the accused and the court interpreter and known from the record, present also was the sureties,” Zulu said.
“My concern on behalf of our client who is the complainant in this matter is that the return dates for the warrant, having been set by this court for the 8th of October 2021, we were not aware as to how the time was agreed for the accused to appear in chambers on the 7th of October 2021 in the absence of the prosecution.”
Zulu asked that the erroneous manner in which Chitambala’s bail was granted be rectified.
He further prayed for the magistrate to recuse himself and send the case for re-allocation.
In response, defence counsel Andy Wright said the offences committed were misdemeanours and that the court was obliged by law to grant bail with conditions as set out by the court.
Wright further wondered whether it was the position of Zulu that Chitambala must languish in the cells for an offence that was available, when the court had the discretion to grant bail.
“Is it the position of the private prosecutor that the accused must languish in cells for an offence that is bailable or for an offence which this court has the discretion to grant bail? We submit to you your honour that this court can only revoke or vacate the bail granted only if the prosecution comes with evidence that the bail has been breached and there is no such evidence before your honour,” he said.
Wright asked the court to dismiss the prosecution’s application so that the matter could be heard expeditiously.
Ruling on the same, Magistrate Hapungani expressed sadness over the grave allegations that were made by the prosecution.
He explained that the arrest warrant was irregularly issued given that Chitambala was not a flight risk.
The magistrate said summons would have been issued first then an arrest would have been done if the accused had failed to honour the summons.
He however said that the bail stands because under the circumstances, it was possible for the accused to make bail applications ex parte.
On the issue of recusal, Magistrate Hapungani said he would gladly recuse himself from the matter following the accusations that had been leveled against him by the prosecution.
“I will not want to seem biased following the issuance of bail yesterday. I recuse myself and send the matter back for re-allocation. He (Chitambala) will remain on bail until the next hearing by the new court,” said Magistrate Hapungani.