FORMER President Frederick Chiluba’s press aide Emmanuel Mwamba has asked the Lusaka High Court to acquit him of contempt of court saying he is not the author of the alleged contemptuous articles over which he has been charged.
This is in a case in which Mwamba is alleged to have authored two contemptuous articles on the Zambian Watchdog website analysing the evidence of murder accused Mathew Mohan.
The case is being presided over by Supreme Court judge Gregory Phiri, sitting as a High Court judge.
Mwamba’s lawyer John Sangwa said there is no evidence beyond reasonable doubt linking his client to the articles.
Mr Sangwa said this in submissions filed in the Lusaka High Court criminal registry on February 21.
“We, therefore, submit that there is only one conclusion open to the court in the light of what we have discussed; that is the accused is not the author of the articles in issue, and should be acquitted of the charge of contempt of court,” Mr Sangwa said.
He said Mwamba should be acquitted because the procedure adopted in the case is novel and without any legal foundation.
Mr Sangwa said the procedure violates the Constitution, and it will be unsafe to find Mwamba guilty under the circumstances.
He said the nature of the contempt involved in the case is known as ‘contempt by publication’ because it emanates from the anonymous articles published by the Zambian Watchdog on the internet.
Mr Sangwa said for one to be convicted of contempt by publication, the prosecuting authority should prove the actus reus (guilty act) and the mens rea (guilty mind).
He said the ingredients of guilty act and guilty mind have not been established in Mwamba’s case.
Mr Sangwa said the evidence before the court is manifestly unreliable for it to make the basis of a conviction for contempt.
A panel of three High Court Judges has quashed a three year jail term slapped on former President FREDERICK CHILUBA’s wife REGINA, by the Lusaka Magistrate Court for allegedly receiving stolen properties.
High Court Judges EVANS HAMAUNDU, CHRISTINE MAKUNGU and EDDIE SIKAZWE unanimously overturned Mrs. CHILUBA’s jail sentence on grounds that all sentences were wrongly imposed on her.
The three Judges acquitted Mrs. CHILUBA on counts one, two, three and six where she stood charged for allegedly failing to account for properties suspected to have been stolen or unlawfully obtained.
In March last year, Lusaka Chief Resident Magistrate CHARLES KAFUNDA jailed Mrs. CHILUBA for three and a half years after finding her guilty on five counts of failing to account for properties suspected or reasonably believed to have been stolen or illegally
Magistrate KAFUNDA had said in his Judgment that there was enough evidence that Mrs. CHILUBA failed to account for the properties during her defence, which he described as inconsistent.
But the panel of Judges has overruled the subordinate court.
The Judges state that Mrs. CHILUBA’s explanation could NOT be said to be inconsistent because the only explanation relevant was the one she gave in court and NOT to the investigators.
On her conviction that she received a Toshiba 61-inch colour television set suspected to have been feloniously stolen or obtained, the Judges said there was NO proof that the property was feloniously stolen from State House.
They said there is NO complaint to date from State House or from government about stolen property.
Mrs. CHILUBA, who arrived shortly after 09:00 hours at the Supreme Court grounds, was accompanied by her husband Dr. CHILUBA.
And Mrs. CHILUBA told Journalists shortly after being acquitted that she is happy with the outcome of her appeal.
Meanwhile, Dr. CHILUBA thanked God for being on their side.
Dr. CHILUBA’s Spokesperson EMMANUEL MWAMBA hopes that the outcome of today’s appeal case will put to rest all legal issues that the family has been subjected to.
And there were songs of jubilation and joy outside the Supreme Court grounds as scores of Dr. CHILUBA and his wife’s sympathizers celebrated the outcome of the appeal case.
A POLICE detective yesterday told the Lusaka High Court that his investigations identified former president Frederick Chiluba’s spokesperson Emmanuel Mwamba as creator of the two contemptuous articles.
Testifying in a matter where Mwamba is alleged to have authored two contemptuous and scandalous articles relating to the Inkteck managing director Mathew Mohan and Idris and Shabia Patel murder trial, Alfred Foloko said he received a court order through the Director of Public Prosecutions (DPP) which required the investigating authority to identify the author and publisher of the contemptuous articles.
Foloko said the court order directed the police to apprehend and take to court the culprit.
He explained that he went to Patents and Companies Registration Agency (PACRA) to establish the editors of the Zambian Watchdog.
“I discovered that the editor is Mr Lloyd Himaambo of Plot number 6059 Sibweni Road Northmead,” said detective chief inspector Foloko.
He said he proceeded to look for Himaambo but he did not find him and a manhunt had since been launched.
Foloko testified that he then interviewed Post managing editor Amos Malupenga in relation to the articles and the latter confirmed receiving one of the articles in his mailbox.
He said Malupenga also produced a tape recorder, which contained the conversation between him and Mwamba and the recording transcript.
Foloko said Malupenga showed him messages on his Blackberry that were sent from Mwamba’s phone number 0977 789102 begin_of_the_skype_highlighting 0977 789102 end_of_the_skype_highlighting.
He said apart from the text messages from Mwamba, Malupenga printed out an article titled The Sajid murder – The plot thickens, an email, which he said came from Mwamba on firstname.lastname@example.org.
He told the court that the same email was forwarded to Amos Chanda’s email@example.com.
Foloko explained that he forwarded the article from Malupenga’s mailbox to Garry Mukelabai, the information systems manager at Zambia Information Communication and Technology Authority.
Foloko explained that Mukelabai, in his presence, established that the article The Sajid murder-The plot thickens was created on October 18, 2010 at 23:30 hours and it was sent to Malupenga and Chanda 37 minutes later.
Foloko told Supreme Court judge Phiri that he and Mukelebai analysed the two articles on the Zambian Watchdog and conclusively agreed that they passed through the editorial process before being published.
He said Chanda also confirmed having received the two articles from his friend Mwamba.
Foloko said Chanda also confirmed having been in contact with Mwamba in person and on phone.
He said he later went to Zain Zambia to obtain a printout of calls and text messages to confirm if at all Mwamba communicated with both Malupenga and Chanda.
Foloko said he confirmed that Mwamba had phoned and sent text messages to Malupenga 42 times from October 1 to 28 and 62 text messages to Chanda from October 1 to 14.
He said the printout from Zain also confirmed that on October 28 Malupenga phoned Mwamba but the call was very brief and Mwamba phoned back with the conversation lasting 853 seconds.
According to Foloko, his supervisors contacted Mwamba on 0977 789102 and asked him to report to the police station.
However, Mwamba said he was out of Lusaka but would do so upon return.
Foloko said he had concluded that Mwamba created the two articles going by the documents he gathered and the interviews conducted.
Mwamba’s lawyer John Sangwa said he needed time to study the document because he did not know the contents of the recorder.
Judge Phiri said the question of admission of the recorder would be reserved until Sangwa studies the contents of the document.
The parties then went into chambers to agree on the next hearing dates.
Earlier, Malupenga told the court that Mwamba said he went too hard on him following The Post’s letter alleging that he authored two contemptuous articles.
During re-examination led by judge Phiri, who sat as a High Court judge, Malupenga told the court that he communicated with Mwamba twice after The Post wrote to him on November 2, 2010 exposing him on the contemptuous and scandalous articles, which circulated on the Zambian Watchdog.
Malupenga explained that he first communicated with Mwamba through a text message as well as in person at the Manda Hill traffic lights, after the court’s directive to the police and investigative agencies to establish the author of the articles.
“Emmanuel asked me if I had submitted the evidence before the police. I responded by saying I am not volunteering information. Those who are looking for it will approach me. At that stage I will give it to them,” Malupenga said. “Then Emmanuel said ‘you are being too hard on me, I am your friend, I am also your mulamu inlaw’. I told him that ‘I had warned you earlier, it’s a pity that things had come to this’.”
He said he had a phone conversation with Mwamba on October 27, concerning the second article where he admitted having been the author.
During cross-examination by Sangwa, Malupenga recalled that he was very upset after he read the second article on October 27, 2010 and he told his colleagues in the newsroom that it was authored by Mwamba.
Malupenga said Mwamba initially denied having authored the article but eventually admitted.
He said he replayed his recorded phone conversation with Mwamba a few times.
Malupenga said he was very familiar with his conversation with Mwamba where he informed him that The Post had officially declared him as an enemy of the company.
However, he said there was no list of enemies of The Post and Mwamba was the only case.
Malupenga said The Post does not destroy such people but keeps them very close.
He said he even cautioned those, in the newsroom, who interacted with Mwamba to do so with care in that he had been officially recognised as an enemy of the newspaper owing to his activities against the newspaper and its managers.
He said The Post had no reason to destroy its enemies but had every reason to defend itself.
Asked if he were in court to destroy Mwamba, Malupenga said he was there to defend The Post.
When told that The Post published online and print editions and was in competition with the Zambian Watchdog, Malupenga disputed the aspect of competition.
Malupenga further said he did not tell Mwamba he recorded the conversation of October 28 for a good reason.
When asked if he wanted to trap Mwamba, Malupenga said The Post was not in the business of trapping people.
He said he recorded Mwamba in defence of the newspaper from its enemy.
Malupenga said he does not record phone conversations but he recorded Mwamba’s call for a good reason.
Malupenga said he challenged Mwamba to deny having authored the articles but he had not done so to date.
POST Managing Editor AMOS MALUPENGA says his publication has officially declared former President FREDERICK CHILUBA”s Spokesperson EMMANUEL MWAMBA as its enemy. Mr. MALUPENGA says Mr. MWAMBA was declared an enemy of the POST Newspapers a few days after its Editor-in-Chief FRED M’MEMBE was released from custody on bail in a contempt case.
Mr. MALUPENGA told the Lusaka High Court that this is because of Mr. MWAMBA’s alleged activities against the newspaper.
He was testifying this during cross examination in a matter where Mr. MWAMBA is charged with contempt.
It is alleged that Mr. MWAMBA authored two contemptuous and scandalous articles on the ZAMBIAN Watchdog website analyzing MATHEW MOHAN’s evidence in the murder of Lusaka businessman SAJID ITOWALA.
Mr. MALUPENGA said the publication regards anyone who plans to cause complete destruction of its establishment as an enemy.
He also told the court that members of staff at the POST who dealt with Mr. MWAMBA at a personal level have been told to do so cautiously.
Mr. MALUPENGA further said the online publication is an alternative source of news.
Another witness LLOYD MUSONDA testified that the ZAMBIAN Watchdog was duly registered with the office of the Registrar of Companies.
Mr. MUSONDA, an Assistant Inspector of Companies at the Patents and Companies Registrations Agents-PACRA, testified that a Mr. LLOYD HIMAMBO is the sole proprietor of the online publication./ZNBC