NDC leader Chishimba Kambwili has asked the Lusaka Magistrates’ Court to refer to the High Court the matter in which he is accused of defaming President Edgar Lungu for questioning his association with Lusaka businessman Valden Findlay, for Constitutional reference.
When the matter came up for continued trial before magistrate Felix Kaoma, the defense dispensed with the cross-examination of PF surrogate Peter Chanda owing to his unwillingness to answer questions.
Kambwili’s lawyer Keith Mweemba asked Chanda a number of questions relating to the matter but he did not answer, forcing the lawyer to indicate he would make a necessary application.
However, magistrate Kaoma ordered Mweemba to continue with the cross-examination by asking questions in line with the allegations leveled against Kambwili and threatened to impose a time frame for the cross-examination to be concluded if Mweemba proceeded to ask questions that were not related to the case.
Magistrate Kaoma said the case would drag if Mweemba continued handling the matter at his own pace.
But Mweemba proceeded to make the application, indicating that the defence opted to have the matter referred to the High Court for determination of certain questions which were constitutional in nature.
He indicated that the application was anchored on Article 28 (2) 8 of Constitution of Zambia.
“The questions the High Court will need to answer are anchored on the provisions of the Bill of Rights, not in the Constitutional Court but the High Court. These questions have never been adjudicated upon in this country,” Mweemba submitted.
And Gilbert Phiri asked the court to allow the defence to file written submissions and arguments to ease the Constitutional reference.
In response, Jonas Zimba, who is privately prosecuting the matter, objected to the application by the defense saying it lacked merit and suggested that cross-examination continues.
State counsel Emmanuel Mwansa, who is also prosecuting the matter privately, said there were no issues that had risen to enable the court to refer the case to the High Court.
Mwansa said the issues Kambwili had intended to raise should have been done before continued cross-examination or before he took plea.
“Finally, where this court has given guidance as to how the matter should proceed, there should not be any reference to the High Court. It was a mere guidance. Based on those points, the application should be refused,” said Mwansa.
Magistrate Kaoma said he would not allow the defence to reply to the prosecution even though it was procedure, but would proceed into rendering his ruling based on the application.
He granted the application by the defense as denying the same would be prejudicial to the interest of justice.
He directed the defence to file written submissions of the application by May 15 and the prosecution to file their response by May 22 to which he would render ruling on May 27.
Magistrate Kaoma said based on the outcome of the ruling, the parties should be ready to proceed with trial.
Earlier, Mweemba asked Chanda about the source of the Presidential Empowerment Fund that Kambwili talked about during the press briefing but in his response, the opposition leader said he did not know the source.
Chanda also said the presidential empowerment fund was not included in the national budget but he was aware that President Lungu had cooperating partners.
He said in his complaint, he did not talk about the money from the presidential empowerment fund but it was related to allegations of drug trafficking.
Chanda said he complained against Kambwili in order for him to prove his allegations against President Lungu.
When asked if he was the one to prove the allegations he leveled against Kambwili, by virtue of him being the complainant in the matter, Chanda could not answer, saying he was still contemplating about the question.
At this point, the defence dispensed with cross-examination and applied to refer the matter to the High Court for Constitutional determination of more than six questions.