By Isaac Mwanza

Introduction

Following publication of the article through this media entitled “Can you criticise the conduct of the courts or of a judge in Zambia?” there are now resounding calls from different sections of society to have United Party for National Development (UPND) leader, Mr. Hakainde Hichilema, charged with the offence of criminal contempt of court and of scandalising the judges of the Constitutional Court.

The general discussion in this article will involve the procedure to be followed in arraigning a person alleged to have committed contempt of scandalising the court, long after trial has been concluded, and the possible consequences of scandalising judges and judicial officers. I conclude by stating that the better way to fight against contempt charges is to humble oneself, apologise and be very remorseful than continue using less-informed supporters to continue slandering the court or judges.

Genesis of allegations

The calls to arraign Hakainde Hichilema for contempt of court and scandalising the judges, stem from a media briefing held at his residence in New Kasama, Zambia around 10^th October, 2017 where Mr. Hichilema nakedly accused three judges of the Constitutional Court who voted to throw out his 16th August, 2016 presidential election petition, of having received money “from State House” (the incumbent President), the good Judges thereby compromising their positions on the Court.

“These days I do not even beat about the bush, Judge Anne Mwewa Sitali is corrupt, Palan Mulonda corrupt, Mungeni Mulenga also corrupt. That is why we are saying dissolve the Constitutional Court… They got 30 pieces of silver. You cannot throw out a petition before you hear it. They are agents of evil, the three musketeers,” said Mr. Hichilema.

In his attacks on the female judges in the majority opinion, Mr. Hichilema stated,

“It is also shameful to see female judges getting corrupt like this to an extent of almost setting the country ablaze just over money, nepotism and unprofessionalism.”

Perhaps influenced or encouraged by, and following the publication of my previous article on the question of whether or not anyone can criticise the conduct of the courts or of a judge in Zambia, a resident from Lufwanyama District in the Copperbelt province of Zambia, wrote to the Chief Justice on 14^th August, 2018 calling on Mr. Hichilema to be summoned to court to answer charges of scandalising the court. In his response to the said letter, which was copied to the Director of Public Prosecutions, the Acting Chief Justice, His Lordship Marvin Mwanamwambwa, replied, stating in part:

“In this particular case, it was the Constitutional Court that was attacked. They are aware of the attacks and insults. But for unexplained reasons, they did not charged the culprit (Hakainde Hichilema) with contempt… In fact, the matter does not need an inquiry; because the evidence is already there. It is documented in the form of a report of utterances by the named culprit (Hichilema)”

Following this response, the leadership of Zambia’s main opposition party, the United Party for National Development through its national youth chairperson, Gilbert Liswaniso, has stated the party’s position on these Constitutional Court Judges:

“Firstly, we stand by our party president (Mr. Hakainde Hichilema), that indeed some of the judges (in reference to the 3 Honourable Constitutional Court Judges Mulenga, Sitali, and Mulonda) are not only morally bankrupt but corrupt to the jaws (as alleged by Mr. Hichilema) and we attribute this to so many injustices happening under their watch if not engineered by them,” said Liswaniso.

Conduct that scandalises the court

Section 116 of the Penal Code, Chapter 87 of the Laws of Zambia seeks address criminal contempt committed in the face of the Court. However, the offence of scandalising the court is a crime that is committed with or without there being any pending case. This kind of contempt is committed when one publishes or causes to be published, either in writing or verbally, of allegations which, objectively speaking, are likely to bring judges and judicial officers or the administration of justice through the courts into, contempt, or unjustly to cast suspicion on the administration of justice.

In the contempt of scandalising the court, whether the administration of justice was in actual fact brought into disrepute is irrelevant. All that is required is that the words or the conduct should have the tendency or likelihood to harm (see the South African case in Mamabolo 2001 1 SACR 686 (CC), p.43).

To constitute contempt of court, an attack on an individual judge does not necessarily need to be made in public. A judge can also be scandalised in his judicial capacity in a private communication to him or her, for example, by letter even though no third party is aware of the communication. While the Courts in Zambia do not consider the writing of every letter as contemptuous, guidance was rendered by the Supreme Court in the case of Sebastian Saizi Zulu vs The People (1991), briefly discussed below, that:

“We feel that the appellant (Mr. Zulu) could safely have drawn the allegation against the learned trial judge to the attention of high judicial authorities, had he so wished. Rather recklessly, however, he chose a calamitous method. The serious situation in which he placed himself could have been avoided.”

It also falls within the ambit of this form of contempt when a person does anything – spoken or written – imputing corrupt or dishonest motives or conduct to a judge in the discharge of his official duties, or reflecting in an improper or scandalous manner on the administration of justice by the courts (see the South African case in Torch Printing and Publishing Company (Pty) Ltd 1956 1 SA 815 (C) 819).

Who must institute contempt proceedings?

Although Section 116 of the Penal Code provide for a limited procedure and penalty for punishing contempt of court, Section 2(c) of the Code provides that, “Except as hereinafter expressly provided, nothing in this Code shall affect the power of any court to punish a person for contempt of such court.”

In dealing with cases of contempt of court, Zambian courts apply the law and practice for the time being observed in England. Primarily, the courts in Zambia derive power from Order 52 of the Rules of the Supreme Court of England (RSC), 1965, commonly known as the White Book, which empowers the High Court and the Supreme Court to punish for contempt of court. This primary derivation of power from the English law is based on the strength of Section 116(3) of the Penal Code which states,

“Section 116 (3)

The provisions of this section shall be deemed to be in addition to and not in derogation from the power of a court to punish for contempt of court.”

By this provision, a court may thus proceed to conduct contempt proceedings in terms of Order 52, having expressly excluded section 116(1) (a) and (2) of the Penal Code. The Courts’ powers under Order 52 are wider than those provided for under section 116 of the Penal Code.

For example, under Section 112(2) of the Penal Code, where a person has committed contempt in facie curiae, that is, in the face or in view of the court, the law provides for detention of the offender, “and at any time before the rising of the court on the same day take cognizance of the offence and sentence the offender” but under Order 52 there is no limitation on the court to dispose of a contempt of court on the same day that it arises.

Order 52 is very detailed and does more than merely set out rules of court, it is all that is required to understand and apply the rules governing contempt. In it one will find the law as to what constitutes contempt of court and what criticism will not constitute contempt of court; the role of the courts and parties. Care is taken not only as to who can initially commence proceedings against contempt ex facie curiae, meaning, contempt committed outside the face or view of the court, in other words, not in the presence of the presiding judge or judicial officer while the court is in session, but also what consent and from whom it may be required to prosecute the case.

Further, the Penal Code does not outline procedure for contempt ex facie curiae. Since the contempt in which Mr. Hichilema is alleged to have scandalised the court with his remarks were made at a time when there was no pending case before the Constitutional Court, he is alleged to have committed contempt ex facie curiae. The procedure to be adopted can be found in judicial precedent and the White Book.

Role of citizens, court, DPP, and ZP to initiate contempt proceedings

In Zambia, the procedure of how prosecutions for scandalising the court are to be initiated and investigated especially where contempt is committed ex facie curiae attract debate even among learned persons. In line with this question is an issue of who should be able to decide cases where a judges have been scandalised, given the personal interest that judges may have in the case to be heard before them.

It is a general requirement that any person who believes from a reasonable and probable cause that a criminal offence, including contempt of court, has been committed by any other person, to make a complaint. The Penal Code, in Section 116, distinguishes between contemptuous acts committed in the face of the court and those that occur outside the view of the court, such as, when one scandalises judges after the case was concluded.

In the case of The People vs. David Masupa (1977), it had been held that the court itself may bring charges for acts of contempt in the face of the court. It was also stated in this case that if contempt is committed outside the court and even if it is separated by distance of time or space from the actual judicial happenings, the proceedings should be instituted by the State or the aggrieved party.

The guidance of the Supreme Court in the case of Reverend Tegerepayi Gust and Elias vs The People (1988) is very important when dealing with these two types of contempt. In that case the Court held that when a Judge invokes provisions of section 116 of the Penal Code, then, the only courses open to him are either to proceed under subsection (2), that is, to deal with the matter on the same day before the rising of the court or to report the matter to the Director of Public Prosecutions who could investigate and institute proceedings, if he thought fit.

This is well grounded from an English precedent in the case of Balough vs The Crown Court (1974) where Lord Denning, the learned Master of the Rolls, said at p 288, paragraph h:

“As I have said a judge should act of his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it on himself to move. He should leave it to the Attorney General or to the party aggrieved to make a motion in accordance with the Rules in RSC, Order 52. The reason is so that he should not appear to be both prosecutor and judge; for that is a role which does not become him well.”

Zambia’s Criminal Procedure Code, Chapter 88 of the Laws of Zambia establishes the role of our Director of Public Prosecutions (DPP) and the Police in matters of contempt of court through Section 83 (1) and 85 (1) which reads:

“83. (1) [Criminal information by Director of Public Prosecutions]

Notwithstanding anything in this Code contained, the Director of Public Prosecutions may exhibit on behalf of the People in the High Court against persons subject to the jurisdiction of the High Court, information for all purposes for which Her Britannic Majesty’s Attorney-General for England may exhibit information on behalf of the Crown in the High Court of Justice in England

85. (1) [Arrest of persons for offences requiring the consent of the Director of Public Prosecutions for commencement of prosecution]

Where any written law provides that no prosecution shall be instituted against any person for an offence without the sanction, fiat or written consent of the Director of Public Prosecutions, such person may be arrested or a warrant for such arrest may be issued and executed and such person may be remanded in custody or on bail, notwithstanding that such sanction, fiat or written consent has not been first obtained, but no further proceedings shall be taken until such sanction, fiat or written consent has been obtained and produced to the court.”

For acts of contempt committed after the case has been closed, the best route is to find balance in the procedure given by the Supreme Court and Lord Denning, i.e. the court should not take it on itself to move. The Court should leave it to the Director of Public Prosecutions or to the party aggrieved to make a motion in accordance with the Rules in RSC, Order 52. The aggrieved party in the case being complained against involving Mr. Hakainde Hichilema are three Judges of the Constitutional Court and the Court itself. It goes therefore that either the aggrieved party itself can make a motion or the court can leave it to the Director of Public Prosecutions.

His Lordship, Acting Chief Justice Marvin Mwanamwamba, fittingly offered sound legal guidance to the complainant against Mr. Hichilema when he copied the letter to the DPP while stating, “The procedure on contempt of court is that it is for the court that was attacked or the adjudicator who was insulted, who should have the culprit summoned and charged with contempt of court.” Copying the letter to the DPP, was also not without legal basis, as demonstrated by his role above.

Despite the two available routes on initiation of the complaint for contempt of court, it must be noted that it is not particularly rare for courts in Zambia to move on their own motion to punish for scandalising the court, and this has been the trend in almost all Zambian cases where scandalising the court has arisen. In the current debate on the possible contempt of court as allegedly committed by Mr. Hichilema, the reference of the matter to the DPP for necessary action to be taken may have a sound legal basis. Nevertheless, the White Book makes it possible to punish the Hichilema kind of contempt of contempt as it happened in the case of Masiye Motels Ltd vs. Rescue Shoulders and Estate Agency Ltd (2010), later discussed below. This does not require the FIAT of the DPP as it is not premised on the Penal Code. To this extent, involving the DPP may actually be irrelevant and inapplicable.

Do acts of contempt committed outside the face of the court, require an inquiry?

His Lordship, Deputy Chief Justice Marvin Mwanamwamba stated in his letter to Mr. Chilombo, “…In fact, the matter does not need an inquiry, because the evidence is already there. It is documented in the form of a report of utterances by the named culprit (Hichilema).” What would be the authority in this matter since this was contempt committed ex facie curiae?

In the case of Sebastian Saizi Zulu, earlier referred to, the Supreme Court of Zambia held that the enquiry that the learned trial judge instituted was unnecessary because he had made his finding of contempt of court as soon as it arose. In this case, Mr. Zulu was acting for the defence in a murder case and before judgment could be delivered, that is, after final submissions for the defence had been made, Mr. Zulu handed to the learned trial judge an affidavit and made an application for the learned trial judge to recuse himself from that case.

The deponent averred in the affidavit that he had been seen at an office in Chachacha Road, Lusaka a letter dated June 14, purportedly written by four judges, including the learned trial judge, Mr Justice Musumali, addressed to Mr Fredrick Chiluba, the President of the Movement for Multi-Party Democracy (MMD) and copied to MMD Vice President Mr Levy Mwanawasa, in which the deponent averred the learned trial judge had informed the MMD that he would fix Kambarange Kaunda (President Kaunda’s son in the murder case) and that he would make history that President Kaunda and his wife would never forget by convicting and sentencing Kambarange Kaunda to death.

The learned trial judge found the action of the appellant to be a contempt of court and proceeded to call witnesses over a period of a number of days. In its judgment, the Supreme Court stated,

“In our view, the enquiry that the learned trial judge instituted was unnecessary because he had made his finding of contempt of court as soon as it arose. There was thus no need for him to have gone further than that. However, the learned trial judge explained his action on the basis that he did not want to be seen to be covering up for himself; rather, he wished to give the appellant “an opportunity to say openly to the Republic the basis of his and Kundiona’s allegations against him.”

It goes without saying that if the Acting Chief Justice is correct that “evidence is already there documented in the form of a report of utterances by the named culprit (Hichilema),” then there would be no need for an enquiry as the State or the court may rely only on the available report.

What is the punishment for people who commit contempt ex facie curiae?

Where the court hears contempt under Section 116 of the Penal Code, the culprit is punished with imprisonment of up to 6 months or imposition of a fine. However, where one is found guilty of contempt under Order 52, the Supreme Court held in the case of Sebastian Saizi Zulu that the punishments referred to in section 116 of the Penal Code do not apply and no particular punishments have been prescribed by Order 52.

The leading case in Zambia on punishment a court can impose on the contemnors who commit contempt ex facie curiae is found in Masiye Motels Ltd, cited earlier, where the court will summarily punish such conduct using its inherent power and wide discretion conferred upon it under Order 52 of the White Book.

The brief facts in the Masiye Motels case are that one Chilekwa, an executive director of Rescue Shoulders Ltd and his lawyer Nsunka Sambo, were facing charges of contempt of court after they allegedly insulted the court following their loss on appeal before the Supreme Court. Chilekwa was facing three charges arising from three contemptuous letters he wrote addressed to the Chief Justice, the Honourable Ernest Sakala after he lost the case in the Supreme Court.

In his letter, Chilekwa alleged nepotism by the Supreme Court bench in reaching its decision, similar to sentiments alleged to have been expressed by Mr. Hakainde Hichilema after he lost the 2016 Presidential Election Petition in the Constitutional Court. In the case under reference, it was reported that after the court received the first letter, it instructed the appellant’s lawyer, Mr. Sambo, to advise his client not to write such letters to the court but, instead of ceasing, the appellant Mr. Chilekwa again wrote to the Supreme Court whose content and language were even more contemptuous than his first letter.

At this point the Supreme Court decided to cite Chilekwa for contempt, so that he would show cause as to why he should not be punished. Before summons were finalised, the court received a third letter referenced, “Pay us our money, maintain integrity, and root out nepotism from the Supreme Court” which was more scathing and in which Chilekwa alleged, “In fact, when handing us the judgment, your own officer of the court, respondent counsel with more than 15 years of legal practice who you interviewed for the High Court judge position said, ‘it is a stupid judgment by the stupid judges.’” Following this, both Sambo and Chilekwa were arraigned by the court to answer charges pursuant to Order 52/1/23 of RSC.

Sambo apologised to the court for having failed it as an officer of the court after it directed him to deal with his client while Chilekwa did not budge but continued to attack the court, accusing the judges of delivering judgments only in favour of their relatives while stating that other judges were corrupt.

In passing judgment, the Supreme Court sentenced the two to three years in prison each, suspended for one year, after finding them guilty of grave contempt of court. The court found that Chilekwa and his lawyer were attacking the integrity of the court. It held that to make wild and unsubstantiated allegations of corruption against the bench could not be condoned as it was intended to scandalise the court, and thus found it highly contemptuous.

This Masiye Motels case, does indeed demonstrate what his Lordship the Acting Chief Justice, Marvin Mwanamwamba said in his recent letter, “the Supreme Court does not tolerate attacks and insults on it.”

The question, though is, does the failure by the Constitutional Court to cite Mr. Hichilema, imply the Constitutional Court does in fact tolerate attacks and insults on it? How does the Constitutional Court interpret the words uttered by Mr. Hichilema, stating that three honourable judges of that court are “corrupt, three musketeers that are agents of evil who got 30 pieces of silver to throw out a petition before they could hear it?” Can it be said that the words “shameful that female judges are getting corrupt to an extent of almost setting the country ablaze just over money, nepotism and unprofessionalism, controlled by Republican President”? Do these words constitute contempt of scandalising the court and the judges individually, and if so, what should Mr. Hichilema do to fight possible contempt proceedings?

What should the public make of the words by the Acting Chief Justice, Mwanamwamba when he wrote, “In this particular case, it was the Constitutional Court that was attacked. They are aware of the attacks and insults. But for unexplained reasons, they did not charge the culprit (Hakainde Hichilema) with contempt”? What are these unexplained reasons?

Should Mr. Hichilema not be given an opportunity which he and his supporters have been waiting for to prove the allegations that the Judges are corrupt and in the pockets of President Lungu? Is the use of young people to pour more scorn on the courts and judges by terming them as “morally bankrupt and corrupt” the best way to fight these allegations of contempt? My humble view is that those are normally faced with such situations are better off humbling themselves, publicly make amends with the courts less they send out a perception that they are untouchable, no matter what they do? I do not wish to see a day when Mr. Hichilema may be arraigned but the continued attacks on the courts by his members may just be a catalyst for the court to act and put this impunity to an end.

Conclusion

In Zambia, a complaint of any criminal offence, including contempt, can be made by any citizen of Zambia, as did the complainant in the instant case, Mr. Henry Chilombo of Lufwanyama. The decision to prosecute the contempt ex facie curiae lies with the State through office of the DPP or the aggrieved parties with consent from DPP. On its own motion, the Court may initiate contempt proceedings for contempt committed in the face of the court although precedent has extended this practice to contempt committed outside the face of the court.

There is indeed no time limit under which criminal contempt proceedings can be brought under Zambian laws. The Supreme Court has indeed demonstrated that it does not tolerate attacks or insults on it while fair criticisms of the decisions of the court or its conduct are permitted by law. With the United Party for National Development, or at least, its National Youth Chairman maintaining the position that it stands by Mr. Hichilema’s allegations of corruption on the part of the judges of the Constitutional Court, one has to stand and watch from the terraces as to how this perception will be corrected.

(Disclaimer: Views expressed in this article do not necessarily reflect the views of any organisation, association or institution the author may be affiliated to and neither do they represent the views of this media but those of the author. The article does not seek to provide legal advice to anyone but those wishing to get such legal advice can contact institutions such as Law Association of Zambia).