THE Lusaka Magistrate Court has dismissed the contempt charge against former Post Newspapers (in liquidation) proprietor Fred M’membe’s wife, Mutinta, as the complainant in the matter was not before court.
Earlier, the State entered a nolle prosequi in the matter but this was received with a sharp reaction from the defence team, which argued that the office of the Director of Public Prosecutions (DPP) was attempting to take over the matter without following proper procedures.
M’membe’s lawyer, Ngosa Simachela, submitted before court that if the complainant, Japhet Mulenga, did not wish to prosecute the matter, the court had the power to acquit the accused person.
“We have a reaction to the instructions from the DPP, your honour, the matter was commenced by a way of a complaint under section 90 of the Criminal Procedure Code (CPC).
“We have this matter being a private prosecution, the DPP cannot take over the matter unless he or she advanced specific grounds, no grounds have been added before this court and we find that this action flies in the teeth of judicial authority,” Mrs Simachela said.
In response, State prosecutor Angela Nyirenda said the State did not intend to change the decision made by the DPP.
“We really appreciate the concerns the defence have raised, however, when a matter is brought to court under section 90 of the CPC, the complainant himself can prosecute the matter or hire a private prosecutor, in this case, the complainant informed the court for an adjournment that he wished to seek the audience of the DPP to take over the prosecution,” Ms Nyirenda said.
She said after the perusal, the DPP saw it fit to enter a nolle, stating that procedure was followed.
And delivering the ruling, magistrate Irene Wishimanga said she agreed with the application by the defence team that proper procedure in the case should have been followed by the DPP’s office in order to prosecute the matter.
“The matter was commenced by complaint as read in section 90 of the criminal procedural code and the complainant is Japhet Mulenga, who is required to be before court to prosecute the matter and no other person,” she said.
At this point, Mutinta’s lawyer asked the court to dismiss the charge, saying the complainant was not before court.
Magistrate Wishimanga granted the application to have the charge dismissed pursuant to section 199 of the criminal procedural code.
She, however, urged the State not to be debarred from fresh proceedings in the matter.
In this matter, Mutinta is alleged to have intentionally disrespected the law by tearing a search warrant dated February 15th, 2017.