Ndulo, Mmembe cited for contempt
Professor of Law, Muna Ndulo and Post newspaper editor Fred Mmembe have been cited for contempt of court by Lusaka magistrate Charles Kafunda.
The two have been ordered to appear before the magistrate on September 2, 2009 to answer charges.
Professor Ndulo
Professor Ndulo is teaching at the University of Cornell in the United States of America.
This is in a matter where Kabwela has been charged with one count of circulating obscene matters or things tending to corrupt public morals, contrary to section 177 1(b) of the Penal Code.
The summon follows an application last Friday by Lusaka Division prosecution officer, Frank Mumbuna, who told the court that the Post had continued violating the law of the land and ignoring the warning given by the court.
Mr. Mumbuna was complaining over an article written by Professor Ndulo entitled ‘The Chansa Kabwela case; Comedy of Errors’ in the ongoing case of Chansa Kabwela, the news editor of the Post.
In the article, profesor Nduno said the Kabwela case is currently before the court as a result of errors of judgment on the part of the President and the police. The situation is exacerbated by the failure to stop the prosecution on the part of the Director of Public Prosecutions and that ‘no other case has damaged Zambia’s image and standing as a tolerant and democratic country.
Prosecutor Mumbuna said the state felt that The Post’s action undermined the integrity of the court.
“We also feel, your honour, that in any journalism field or profession the observance of the law comes within such training and for the editor of The Post newspaper to have closed his eyes to such realities would be an act of stubbornness for which the court must provide protection.
“The comment by The Post newspaper, which goes on to say ‘as Zambians endure this unnecessary court process’ is an act of indiscipline, which might jeopardise the proceedings of this trial, to which the court must protect the state.”
Mumbuna said it would also be prudent for the court to protect its own integrity adding that the application was meant to protect both the state and the accused person.
“The comments and the cases put forward before this article goes to show assumption of authority by an unauthorised person or persons,” he said.
Mumbuna argued that the title of the article belittled the court and those that were involved in the trial.
“Because the state has not been given adequate time to justify on the comments that have been written by The Post, we will prove to the world that in a case of obscene, intention is not necessary,” Mumbuna said before magistrate Kafunda advised him to stick to the issue. “Judgment has been provided for the court and this article is capable of influencing the outcome of this case. We will be quick to say that the editor of the newspaper, The Post itself, must be cited for contempt under section 116, as provided by the law.”
Loading ...
First of all, can some legal-mind on here educate me about “COURT GAG ORDER” and how it works?!! I am flabbergasted as to why an individual who is not even remotely connected to the court proceedings/case should be prevented from editorializing or writing about it. In my humble understanding, I thought a gag-order can only restrain people who have first-hand knowledge, i.e., prosecutors, investigators, the accused, and/or the defense counsel, from commenting on the facts in a particular case, for prejudicial reasons. I have never, however, heard of a court gag-order that prevented private citizen not affiliated with a case in question from expressing their opinion or views on it—at least not here in the USA.
So, how does a newspaper article by a Professor, living thousands of miles away, have any bearing on a case before a court in Zambia? Shouldn’t we just regard whatever anybody, without first-hand knowledge of the material facts on this case, says/writes as pure conjecture and speculation? Something not worth the court’s time and attention!? I definitely think so!!!
Does anybody know if the judge in this case issued a GAG-ORDER? Any lawyers on here? If so, I still believe gag-orders are not meant to stifle discourse and opinion on court proceedings. If this is what Frank Mumbuna (the prosecutor) and the Lusaka magistrate, Charles Kafunda, are suggesting, I fear for Zambia.
The govt & courts in Zambia should not fear or abhor criticism if what they are purporting about Miss Kabwela’s case is perfectly legal. They say, “only the guilty are afraid.” Facts, fairness, and truth will set the Zambian Judiciary and govt above board. Not! intimidation. Zambian courts should show and be seen to be independent, if citizen’s belief in our Zambian justice system is be sustained!!!
ONLY IN DICTORSHIPS DO THE STATE USE THE JUDICIARY TO ABUSE AND HARRASSE ITS CITIZENS—we shouldn’t let Zambia degenerate into the abssy—and courts are there to act as our last defence against an all powerful State machinery!!!
It is quite clear that THE SAINT does not know what he is talking about. Here you have Prof. Muna Ndulo, an authority on African legal systems, human rights, constitutions, election monitoring, international development, and legal aspects of foreign investments in developing countries. After receiving his LL.B. from University of Zambia, and LL.M. from Harvard Law School Dr. Ndulo was Public Prosecutor for the Zambian Ministry of Legal Affairs. He was Dean of University of Zambia School of Law, and from 1986-1996 served the United Nations Commission for International Trade Law. From 1992 to 1994 he was Political Adviser to the U.N. Mission in South Africa. He joined Cornell Law School’s faculty in 1996, and has continued to advise U.N. Missions in East Timor, Afghanistan, and Kosovo. He recently travelled to Kenya to help with the constitution and and peace-building efforts. Prof Ndulo teaches international organizations and human rights institutions; the legal aspects of foreign investment in developing countries; and the common law and African legal systems. He is also Director of Cornell University’s Institute for African Development.
He is by no means a Senior Lecturer but a full tenured professor. This is a man that Zambia should be extremely proud of. He is hte author of more than 15 highly acclaimed books.
So, SAINT or SINNER, go and do your homework or better yet, shut the F- – - up!
I disapprove of what you say, but I will defend to the death your right to say it.–Voltaire
“The fact is that censorship always defeats its own purpose, for it creates, in the end, the kind of society that is incapable of exercising real discretion. ~Henry Steele Commager
We have a natural right to make use of our pens as of our tongue, at our peril, risk and hazard. Think for yourselves and let others enjoy the privilege to do so, too. ~Voltaire, Dictionnaire Philosophique, 1764
This is the bedrock of every democracy. What those in the government have done is to open themselves up to be laughing stock of the country and the world. Prof. Ndulo was expressing an opinion and he has the right to do so. Pornography is described as “Sexually explicit pictures, writing, or other material whose primary purpose is to cause sexual arousal.” No one can see the photos and become sexually aroused.” if the photos are not for the intended purpose of erotic arousal, then they are not pornographic. Simple as that. Perhaps there are some members in the government who get aroused just by looking at a tree, but those ones are the exception. A normal person does not see photographs of a woman in pain during labor are pornography.
So let Zambia once again be known for rational fairmindedness as in the days of the great Manawasa. I weep again for those days.
Don`t worry Prof. Ndulo and the great guys at the Post, acts of narrow minded and scared people will not get anywhere. Its a pity our institutions are being destroyed by the Rupiah Banda regime. This is what President Obama referred to when he visited Ghana. That African governments destroy there governance institutions and yet they expect development to be driven by the same institutions they are destroying. This is what is happening in Zambia now. Our judiciary now has to be seen to be pleasing Rupiah Banda`s regime.
When expression of an opinion become a crime. If it was, how many people will be sent to jail in the USA and elswwhere. Anywhere in the world people pass there opinions on cases in court. How can a competent judge be influenced by comments from the public? The action to summon Prof.Ndulo and the Post is stupid.
Dont worry guys its not like he will be sentenced to death or life imprisonement.If found guilty, Membe will only be sentenced two weeks simple imprisonement or a week of community service most likely sweeping and watering around the court premises.
We just expressed our thought of the Kabwela saga and we now wanted by the courts, nima shamu. Will stop talking!
I think freedom of speech means speaking freely as a person and it ends there period.Now it becomes confusing when you speak prejudice speak hatred and speak confidently that the truth is to your side when infact the truth is in the center and everyone is claiming it to their side.Let Fred reformat his approach to the so called freedom of speech.Publish the voters register(not only eduaction post but election post) comment on its anomaly then let us go with meaningful poll surveys eg in the rural areas basing on people with voters cards. Make local his editorial.In short let us intensify voters register rather than wasting time talking to Deaf President and its cadres.
Fred,Nchito,Nkole,Mbombo are all heros you want it or not.This country by today will have vanished from the face of earth had it not been for the post reporting on things we were not going to see or hear about.All the bloggers who are supporting what this govt is doing,should check their brains.This country is now directionless.
Can some one define freedom of speech. Pipo living in the USA– How many pipo would have been locked up for airing their views on the Micheal Jackson molestation cases? The Kabwela case lacks merit that is why Ka Judge Kafunda feels insulted. All he has to do is prove the media and Ndulo wrong with his judgment!!
Come on fellow citizens,we are all proponents of freedom of speech. Let us not shame each other.
As long as we continue to be divided against each other we will never be taken seriously by those who are oppressing us in one way or another. We must never expose ourselves to divide-and-rule machinatins.
Comment on issues to enlighten us all.
These are genuine professors, all Mmmembe does is excite them and get a statement from them. If he can not get what he wants he will engineer or misquote. Hence the multiple apologies to those who have complained….
I have always wondered how Mmembi manages to recruit supporters it be reverands bishops ,trade union leaders ,failed politicians, doctors,engineers, peasants,scientists,magicians and what have you in his schemes. Sometimes you wonder if they are real professors. Come on mmembi dribble them in the chiluba style.
It is not surprising, that the country is in the situation that it is, there is so much acceptance for wrong that it is not surprising that there are no checks even at a moral level. You get lots of comments condoning wrong either because we reckon other people are gaining in prosecuting crimes against the Zambian people or we ourselves are beneficiaries of corrupt and thieving activities.
We need to rise above these petty jealousies, if you have got anything against the Nchitos,the Nkoles,the Catholic Priests, the people at the Post, why dont you report them, because the powers that be will be more than happy to get at them. Innuendos not reflected in evidence will forever merely shackle us to slavery and poverty from our own people. The fact that people are out of Zambia does not mean that they dont feel and bleed for the country. Lots of relations depend on these people, so let us criticise but not out of ignorance or selective facts. We will be better of when we start making considerations not just based on law,(dont forget you can get away on technicalities) but also the moral and economic and the well being of all of the citizenry.
How can any normal person accept the poverty of our people as a result of mismanagement and a system that seems stacked against the majority of our people?
These are times when I enjoy listening to Petersen’s song, ANYANDULE, because these are what we have for leadership
The problem is our Docileness, which these thugs have taken advantage of. These are the results of having a failing judicial system. Unless we stand up to support our brothers, put up protests from all corners of the state to register our displeasure, such nonsense shall continue. The servant becoming master,what rubbish. It shouldn’t just end here.
Mmembe – cheated in law exams and colluded with Mwanawasa to rob Zambians for now and future generations, out of their God given right to benefit from copper and other resources. NCHITO perpetuated the scam of prosecuting Chiluba whilst receiving hefty salaries and allowances in return- how on earth could Shansonga and Chungu escaped whilst being guarded? Harrington – cheap thief from the Chiluba era who lived and breathed corruption and is now broke. Do not get me wrong, Chiluba is a big thief who deserves to be locked up- his well wishers argument does not hold water – hence the copious wealth of those around him, Chungu, Kalumba, Nawakwi and many others who were not subjected to the forces of well wishers. But Mwanawasa was just as big a thief and we need to reclaim our wealth from these two thieving bastards!
Seems we are back to 1st and 2nd republic. democracy is now a word anyone can play around with to suit a situation,the judicial systems is at the mercy of who ever is in power. one wonder what will become of this country in 10yrs time…
ba bental ba bental,shame on you,lets wait and see,Mmembe and the NCHITOS are not young kids,these are pillars of democracy ,get to know them better do not just say things before u know them.viva Mmembe viva NCHITO viva harrington viva cavima we are the true zambians we have only one country zambia unlike A MR NDULO
mtembo nchito,fred membe,nkole and others are true sons and daugters of zambia who needs to be incouraged to continue to speak for the voiceless,may GOD protect you all from the hands of the enemy of developments.A MR NDULO shame on u ,we do not need u to speak for us coz u do not seek what is happening to us in misisi compound u are just told even throught the post newspaper shame on u sir
This guy Fred is a problem also, he always doesn’t shut his fuck up even if he knows the case is in court… Now the state wants to pin him, i don’t know how he’s going to defend himself now, little does Mmembe know that Rupiah Banda is the start of our judiciary and the end of it! Rupiah as a head of state can use plot one powers to convict even the innocent, he has powers to put judiciary in his armpits and and use it to prosecute his enemies… Prison is a second home for Chansa Kabwela unless if Rupiah exercise leniency on her, just wait and see! Mmembe should know that it’s costly to fight the state especially in our country where all security wings are under the head of state command…
I DON’T THINK Muna Ndulo will be foolish enough to argue or invoke the so called freedom of speech covenant enshrined under article 9 of the African Union Human Rights Declaration without recognizing the limitations associated with the Freedom of Speech particularly when freedom of speech conflicts with other values or rights such as Stuart Mills’s, the “Harm Principle” or Joel Feinberg’s “ Offense principle”. It’s better we all realize that Limitations to freedom of speech do occur through social disapprobation or legal sanction as in this case. I am afraid Magistrate Kafunda is standing on very solid ground here.
this country has witnessed the worst circus in the judicial,the major problem is that they may be lawyers the likes of a mr NDULO but no WISDOM meaning no fear of GOD all they want to be known of their little education.sure how do you contradict youself the worst is on chiluba and regina case,dora siliya etc,yo days are numbered
Dream on if you think Ndulo is obliged to appear. Whatever happened to free speech? Matters in court are not sacrosanct and can be commented upon, wait till you hear the submissions on behalf of the alleded contemnors! Good luck public prosecutor!
There is a danger of the Zambian judicial system being a laughing stock. Judges are not exercising their independence but dancing to the government’s tune. When a government fails it looks for scapegoats. The Zambian leadership are trying to hide something. What can that be? Judge for yourselves.
Its just a matter of time. Mmembe is finished. All indicators show the end of mmembe and his reign as media and political hitman. Have you seen how no one believes his newspaper nowadays
The article that was allegedly attributed to the learned Prof. Muna Ndulo (Former Dean, School of Law, UNZA; currently Law Professor (equivalent to Senior Lecturer) Cornell University, USA)was definitely subjudice and amounts to contempt of court. This man is a lawyer and so are the editors of the Post and they knew exactly what they were getting into. Turn the tables around, and imagine that the President said those things in any case before the courts, they would be the first to cry foul. That article was meant to bring pressure to bear on the magistrate to acquit Kabwela. Prof Ndulo should have come to Zambia and engage himself as Kabwela’s counsel or friend of the court to deliver that message. I agree with the substance of the article but it was premature and therefore amounts to contempt of court and the court must come on very strongly against the culprits to deter others who may in future think of doing the same. These guys have too much money and only a custodial sentence will really hurt them.
Mukundakufwa Wamulume
Muna must find his way home otherwise he will be found guity in absentia and our RBs effective diplomatic Channels will bring him home under deportation orders from the federal dept to come and do some time at chimbokaila.
insala…..umunenu alikala kubulaya…mwayamba ukumelata kutu ma courti
Could this be a case of superimposing or using Prof. Ndulo’s name as author of the article? If it is then we are in for a very exciting moment in court. We just wait and see how Fred will now twist this charge and bring President Ruiah Banda’s name into it.
From the little law we know on the charge, we like the expanded definition on CONTEMPT OF COURT which says: Any willful disobedience to, or disregard of, a court or any misconduct in the presence of a court; action that interferes with a judge’s ability to administer justice or that insults the dignity of the court; punishable by fine or imprisonment or both. A judge who feels someone is improperly challenging or ignoring the courts authority has the power to declare the defiant person [called contemnor] in contempt of court. Direct contempt occurs in presence of the judge.
There is also INDIRECT CONTEMPT which basically applies to any person who makes, or publishes any false or grossly inaccurate report of any case, trial, or proceeding, or part of any case, trial, or proceeding is guilty of an indirect contempt in which the case, trial, or proceeding was instituted, held or determined if made at any time: A) after the proceeding commenced. B) While the proceeding is pending C) while the court has jurisdiction and D) before the proceeding is fully determined and ended. In addition if a report described in subsection A is made; pending the case, trial, or proceeding and concerning any ruling or order of the court. There is both civil and criminal contempt’s; the distinction is often unclear. This particular contempt is criminal and all accused will be allowed to call witnesses if they so wish.
But since the said Prof. Ndulo is allegedly outside the country at Cornell University,Iowa how do we know for sure that he is the real author of this article? If indeed Muna wrote that article then I am afraid he asked for it. Or will Mr. Mmembe concoct his own Prof. Ndulo as what happens in the letters to the editor columns where the author of all those letters is basically himself and superimposes fictitious names of writers? Is the Post not going to do another Kabwela thing “That it’s the husband who photographed the wife and brought the pictures to the post?” And yet it was the Post cameraman under Fred Mmembes orders? Is the Post going to scrifice Muno Ndulo as they did with Kabwela when in fact it was Fred who was behind those obscene pictures being circulated and the poor girl is now in court. Is this what it means to work for the Post Newspaper? Is the Post Newspaper going to pay for Muna’s airfair? Or they will let their columnist come all the way to Lusaka from the USA at his cost? We have two days to go. We just wait and see…
People must be allowed to speak why threats ;;what pains people must be aired out for others to know ;;;you cannot keep people silent when things are wrong give us a break///
Mmembe and others should avoid commenting on on-going cases in the Zambian courts. The case against Kabwela does not warrant court proceedings in my own opinion but because the president said so and passed judgement on the poor journalist, the police swang into action to enforce what the president said. I wish to say that silencing the post is a waste of time and the president and his team must focus on providing leadership and not what they are doing. Its a shame that we wasting public resources on pursuing poor Kabwela.
What is happening with my tribal cousin kanshi?
Fred Show them. Tell them the truth may be they are tired of reading the post like I am.It will be face to face dont forget your editorial word acrobats and Bible verses especially Sirak in your last words tell them How you saw Chiluba steal and how he shattered yours dreams by dening your a job in MMD citing that you are not educated. Now that you have risen from the ashes, a lawyer, fight on my bro.
M’membe should one day test the prison. aliya sana
Where there is apparent miscarriage of justice in the land, what do you expect? People will be aggrieved and will seek to express themselves in whatever way is available.
The Executive and Judiciary in Zambia need to clean up their houses instead of flexing their delegated muscles. They must never take Zambians for their slaves. We are their masters and employers.
This hightenning intimidation must stop now. The Courts have more serious and real cases that need attention – cases of men and women behind bars whose justice is either delayed beyond reason or is being denied.
If resources are available to summon Mmembe and Professor at such short notice, why can’t resources be available to deal justice to those who have been waiting for ages? Emotivism in despensing justice to the people must never be the basis of so doing.
Remember that God is the ultimate Judge whose justice is Righteous. The Judges and Justices in our nations are subject to Him, and will themselves be Judged for misrepresenting God in the course of their duties.
Why shouldn’t we complain, comment and advise if we are subjected to suffering, shame and are deprived of freedom by the justice system in Zambia?
Another Comedy of Errors in the offing!
Rupiah’s words to close the post by using state machinery such Dpp, police and judicially are working but the end result is very bad.. Please someone advise the old man
They should arrest them immediately.We must have order in scoiety
they should lock up these fools. One day Mmembe’s day of judgment will come.