Zambia’s Trial of Journalist Tests Legal Boundaries Lusaka Principal Resident Magistrate Obbister Musukwa is on Friday October 17, 2014 expected to deliver ruling in the continued trial of freelance journalist Chanda Chimba, III who on October 8, 2014 through his lawyer Maj. Charles Lisita of Central Chambers applied that Count 6, being found “in possession of property reasonably suspected to be proceeds of a crime” amounting to K611, 440,433.12 (in old currency), of his indictment be amended as it is defective. Chimba is also charged with unlawful printing and publishing of a newspaper and is appearing in court with former Information and Broadcasting Services Minister Lt. Gen. Ronnie Shikapwasha and former Information and Broadcasting Services Permanent Secretary Dr. Samson Phiri. Shikapwasha and Phiri stand accused of abuse of office. The trio was in January 2013 dragged to court because of Chimba’s “Stand Up for Zambia” television documentary and newspaper by the same name. The television documentary and newspaper were critical of President Michael Sata and the Patriotic Front (PF) prior to the September 20, 2011 Presidential and General elections. At the last hearing Maj. Lisita submitted that the State have been careful not to use the word disposal per-se but by couching the charge in a language used, the State are alleging that Chimba did possess the said property and that he used that property to pay for private media and printing services which in effect is disposal. Lisita contended that Chimba has actually been charged with two offences in one count. “In other words, by alleging that he used the property to pay for these services the State are in essence charging Accused 2 with disposal of property,” Lisita told Magistrate Musukwa. Pursuant to Section 213-1 of the Criminal Procedure Code (CPC) Lisita applied to the Court that Count 6 be amended. This particular section of the CPC actually states that ‘Where, at any stage of a trial before the accused is required to make his defence, it appears to the court that the charge is defective either in substance or in form, the court may, save as in section two hundred and six otherwise provided, make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case’. The application was supported by another defence lawyer Hobday Kabwe of Hobday Kabwe and Co. representing Shikapwasha. Kabwe said by amending Count 6 the State will only be keeping in line with the dictates of the current Zambian Constitution which requires that the charge an accused person has been slapped with must be clear and is according to Article 18 in the best interest of justice. But Martin Mayembe a state advocate from the Anti-Corruption Commission (ACC) objected to the application. The State argued that all the provisions of Section 137 of the CPC were complied with when drafting the indictment. But it looks like the prosecution’s greatest fear is the fact that if the Court grants Chimba the application then he will have to take a fresh plea and be at liberty to recall some or all of the prosecution witnesses that have so far taken the stand since trial commence in 2013. Section 213-1 of the CPC further states, ‘Provided that, where a charge is altered under this subsection the court shall thereupon call upon the accused person to plead to the altered charge the accused may demand that the witnesses, or any of them, be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate and, in such last-mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out of such further cross-examination. It also states that variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. Lastly Section 213-1 of the CPC states that where an alteration of a charge is made under subsection (1) or there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary. Whichever way Magistrate Musukwa’s ruling goes on October 17, 2014 when the matter comes up at 08:00 hours sharp in courtroom 5, it will be interesting to see how both the prosecution and the state will react. zambiareports/2014/10/16/zambias-trial-journalist-tests-legal-boundaries/
Posted on: Thu, 16 Oct 2014 03:06:15 +0000
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