Anderson Kambela Mazoka v Mwanawasa and Anor (SCZ EP 1 of 2002) [2003] ZMSC 110 (15 May 2003)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Constitutional Jurisdiction) SCZ/EP/01/2002 IN THE MATTER OF And IN THE MATTER OF an application under Article 41(2) of the Constitution of Zambia And IN THE MATTER OF regulation 15 made pursuant to the Electoral Act, 1991 And IN THE MATTER OF the Presidential Elections held in Zambia between the 27th and 31 sat December, 2001 AN ELECTION PETITION BETWEEN: ANDERSON KAMBELA MAZOKA Ist PETITIONER AND LEVY PATRICK M WANAWASA 1ST RESPONDENT AND THE ELECTORAL COMMISSION OF ZAMBIA 2nd RESPONDENT AND THE ATTORNEY-GENERAL 3rd RESPONDENT CORAM: SAKALA, CJ., LEWANIKA, DCJ, CHIRWA, CHIBESAKUNDA, MAMBILIMA. CHITENGI, SILOMBA JJS On 11th February, 2003 and 15th May 2003. For the Ist Petitioner: For the Is* Respondent: For the 2nd and 3rd Respondents Prof. M. P. MVUNGA of Mvunga Associates J. MWIMBU of Mwimbu & Company Dr. J. B. SAKALA, SC of J. B. Sakala & Co S. C. MALAMA of Jacques & Partners M. MUNDASHI of Mulenga Mundashi & Co. G. KUNDA, SC., Attorney-General S. NKONDE, Solicitor-General J. JALASI, Principal State Advocate. RULING LEWANIKA DCJ., delivered the Ruling of the court. Authorities referred to: 1. A. G. Vs Times Newspapers Ltd, 1974, A. C. p 273. On 6th February, 2003 we issued a subpoena against the 1st Petitioner to show cause why he should not be cited for contempt of this court arising from an article published in the Post Newspaper of 3rd February, 2003. The article was on the front page of the Post of that day and was in bold headline reading "CHILUBA, MWANAWASA ARE THIEVES - MAZOKA." The article then went on to state quoting, the relevant parts only, "Chiluba and Mwanawasa are thieves" UPND President Anderson Mazoka has charged. "Addressing a campaign rally on Saturday at Shimukuni primary school in Chibombo for the Keembe parliamentary by-elections scheduled for Thursday this week, MAZOKA said there was no money for development because former President Frederick CHILUBA, President Levy MWANAWASA, former intelligence chief Xavier CHUNGU, former Finance Minister Katele KALUMBA and former Zambia Airforce Commander Lt. Gen. Ronnie SHIKAPWASHA shared the spoils in plundering national wealth. "They are all thieves," Mazoka charged. "Such leaders have contaminated blood and are incurable, so avoid them including Shikapwasha" Mazoka said while the MMD spent KI 6 billion in 2001 elections, President Mwanawasa on a single day got K200 million. "If I brought the KI 6 billion to you today, your friends will finish harvesting their maize in fields while you will still be counting the bundles but the MMD plundered it, " he said. This article came to our attention because in it, the 1st Petitioner was allegedly commenting on the evidence adduced before this court in the on going Presidential Election Petition in a manner that could prejudice the holding of a fair trial. In his evidence to this court, the 1st Petitioner said that he had seen the article complained of but that he had not read it in the context that the court is asking him to look at it and that he never heard the reports in the electronic media. He said that he did not call PW 45 a thief and that his speech at the meeting was in the vernacular and there could have been distortions in the interpretation. He said that there were a lot of speeches at the meeting and a lot of things attributed to him were not said by him. He said that there were a lot of questions asked about the proceedings in the Presidential Election Petition and in reply he told the people that he would be in contempt of court if he made any comment on the proceedings. He said that President MWANAWASA had said that people should not vote for those who had plundered the economy and he felt obliged to reply that neither their candidate nor himself were associated with the plunder of the economy. He agreed that he did mention that if all the money were used, there would be development. He said that he mentioned KI6 billion but did not associate it with the court proceedings and denied that he mentioned K200 million. He reiterated that he addressed the meeting in vernacular and that there were many speakers and he believed that the speeches were consolidated and put in his name. He said that as a Petitioner, he had complained about comments made by the 1st Respondent in the Post and that he would await the outcome of the petition. That it has never been his intention to undermine the authority of the court and that he had telephoned his chairman for publicity to make a retraction but this was not done and that this was in relation to the same publication. He said that he did not say that CHILUBA and others were thieves and neither did he say that the present leaders were contaminated with blood. He said he made a calculation of President MWANAWASA's travel expenses and he agreed that he did say that the first lady was given K700 million for a trip to Livingstone. The court also subpoenaed the author of the article, one Lemmy MOONZE, who is employed by the Post Newspapers as a reporter. In his evidence to the court he said that on 1st February, 2003 he traveled to Keembe to cover election meetings to be addressed by the UPND. He was in the company of Sakwiba S1KOTA and they drove to Mubimba ward which was the first point of the rally. He said that he had a note book in which he was recording contemporaneously. He said that although there were other speakers he restricted himself to cover only SI KOTA and MAZOKA. He said that he covered two rallies on the same day. The second rally was at Shimukuni School. From the rally they drove to the campaign camp for the UPND after which he was brought back to Lusaka by the UPND Member of Parliament for Chilanga, Captain MOONO, who took him straight to his house as it was after 2200 hours. On the following day, he went to the office to write the story after which he told his news editor that he was through with his work. The news editor went through the story and then told him to go home and rest. He said that he had his notebook with him and from it he would be able to identify the rallies that he covered. He said that the 1st petitioner spoke in Tonga whilst he recorded in English. At the first rally the 1st petitioner thanked the electorate for having voted for him in 2001 even before seeing him physically. He said that it pained him to see the extent of poverty in Zambia and yet nothing is being done to alleviate it. That if the nation is denied a chance to develop the people would become slaves and this could lead to civil war. That there is a disease that Zambia is developing into. He said we love Zambia, it is not trees or grass but you the people. That those of you who read the bible are familiar with the story of Solomon. That it was the story of two women who were fighting over a child. That we shall not destroy Zambia as UPND and that for as long as he lives he will take UPND to State House. That when UPND was started in 1998 people doubted it. That we told MMD that they had killed the country and the economy but they did not listen. That the poverty, diseases and hunger in Zambia are not from natural causes, but by the failure of the leadership elected in office. That he wants the country to be out of hunger and that God gave us water and land that there is no way out of hunger other than agriculture. That food relief humiliates and will not take us forward. That UPND would distribute fertilizer for free. That agriculture is neglected as without feeder roads it is impossible to improve agriculture. Agriculture was about animals which are now gone because of corridor disease. That the wealth of a nation is in individual ownership of property and that if individuals are poor the country is impoverished. That he wanted to serve this nation because it was Zambia that educated him. He begged the MMD to stop copying the UPND manifestos as free education under UPND was up to Grade 12 and not 8. He said President MWANAWASA at the official opening of Parliament had agreed that MMD had no brains and this is why he intends to steal MPs from the opposition and UPND in particular. He wanted his party to go into power because his members of Parliament are not thieves as all of them have houses of their own. That the intelligence that UPND had brought should work for Zambia. He said that the K200 million that MWANAWASA got in a single day was nothing. He said MMD spent K16 billion on the 2001 elections and if I brought this to you to count, your friends would complete harvesting while you are still counting. That MWANAWASA, in one year spent K90 billion, while the first lady spent K700 million in Livingstone in three days. He reminded the electorate that they all paid tax through V. A. T. and that this is the money being wasted. He said there is money and they are eating it. He said that on the fateful day when the late MAPUSHl died, KI 00 million in cash was found in the vehicle. He said it was part of the KI50 million from the Bank of Zambia. On SHIKAPWASHA, he called on the electorate to tell SHIKAPWASHA that MAZOKA wants the K2 million that SHIKAPWASHA borrowed in 1990. He said you do not give leadership to such people. He promised free education and medical care and that hunger would be finished. That the MMD destroyed Zambia in eleven years and it must remain where it belongs, in the dustbin. That there was no Lenje, Tonga or Lozi as we are all Zambians and no tribe can run Zambia without the others. That when trouble comes to a country it does not choose tribes and that you would cause incredible bloodshed by campaigning on tribal lines. The witness said that he also took notes of the rally at Shimukuni. At this rally the 1st Petitioner also spoke in Tonga and repeated some of the things he had said at the earlier rally. He then said that we are sure that we won the 2001 elections even though it was stolen from us. That we shall not throw stones because we love Zambia. We are determined and will never go back. He said that they tell us that there is no money, but there is no money because of stealing. CHILUBA, MWANAWASA, SHIKAPWASHA and KATELE are all thieves. The witness said at this point they were overwhelmed by rain and everybody scampered and it was the end of the rally. The witness said that he wrote the story from the notes that he took and produced the notebook which became exhibit C1. He said that he was not with CHIFUWE as he was covering President MWANAWASA who was also campaigning in Keembe. He said that he saw the article when it appeared in the paper and that what appeared in the paper represent what MAZOKA said at the rally. He said that the isl petitioner had said that CHUNGU also stole money. That the 1st Petitioner had also said that CHUNGU revealed in court that MWANAWASA had received K200 million in one day. Cross examined by Prof. MVUNGA, the witness said the Is’ Petitioner was speaking in Tonga and he was recording in English as he was more comfortable to record in English. He agreed that he did not mention CHUNGU in his notes. He said the 1st petitioner had said that he did not want to comment on the case in court but did not stick to it. He said it was a campaign rally for the Keembe by­ election. He said that he was aware that the Is1 Petitioner had complained about some articles that had been written about him in the Post. He agreed that the 1st petitioner did not see the story before it was published. He reiterated that the Is1 Petitioner had called MWANAWASA a thief. He said that he was aware that Patrick CHISANGA had dropped a demand for a retraction before the 1st Petitioner was summoned. That CHISANGA suspended the retraction because of the meeting they were supposed to hold. He said that he became a journalist in April, 2002. Cross examined by Mr. MWIMBU, he said that the principles of journalism are that one should write a balanced story. He said that the third paragraph of the story was from the 1st Petitioner and that the fourth paragraph does not refer to getting money from a particular person. At the conclusion of the evidence of the witness, Prof. MVUNGA addressed us on behalf of the 1st Petitioner. He said that a citation for contempt not in the face of the court is premised on a fundamental understanding that the authority of the court should not be undermined on a matter pending before the court. He said that in his research he could not find a better authority than that of the ATTORNEY-GENERAL VS TIMES NEWSPAPERS, 1974 A. C. at page 273 and in particular the rationale as propounded by Lord DIPLOCK on page 309. He said that even if we were to assume that what was attributed to the 1st petitioner was correct, it does not offend any of the principles set out in the case above. That the Keembe meeting was a campaign meeting and there was no reference made to the proceedings in this court. That there was no evidence to show that the 1st Petitioner said anything about the petition or its preferred conclusion. That it cannot be said that the 1st Petitioner's comments erode public confidence in the institution of the court. He further said that it is not admitted that the lsf Petitioner said the words referred to in the article in question. That in his testimony, he has vehemently denied having said so. Further that the 1st petitioner made efforts at a retraction at the earliest opportunity before he was summoned. The retraction was not published and that this was confirmed by the testimony of the witness called by the court. He urged us to accept the Ist petitioner's testimony and that he should not be cited for contempt. We have considered the evidence adduced by the 1st Petitioner and the witness called by the court who was the author of the article in question and we are satisfied that the 1st petitioner uttered the words attributed to him in the article. The reference to the K16 billion allegedly used by the MMD in the 2001 elections and K200 million allegedly given to the 1st Respondent in a single day arise from the evidence of PW 45 in these proceedings, and these proceedings are still pending. Of the persons who were called thieves, the 1st Respondent is a party to these proceedings and both PW 45, Xavier CHUNGU and PW 48 Dr. Katele KALUMBA were witnesses. In the case of ATTORNEY-GENERAL VS TIMES NEWSPAPER LTD (1) referred to us by counsel for the 1st Petitioner it was held that it was contempt of court to publish material which prejudged the issue of pending litigation or was likely to cause public prejudgment of that issue. Lord DIPLOCK in the same case at page 309 succinctly put it as foliows:- ”The due administration of justice requires first that all citizens should have unlimited access to the constitutionally established courts of io criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon these facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly, that once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed as contempt of court." Lord DIPLOCK went on further to say at page 310:- "...similarly 'trial by newspaper,' i.e. public discussion or comment on the merits of a dispute which has been submitted to a court of law or on the alleged facts of the dispute before they have been found by the court upon the evidence adduced before it, is calculated to prejudice the third requirement; that parties to litigation should be able to rely upon there being no usurpation by any other person of the function of that court to decide their dispute according to law. If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy or to public prejudicial discussion of the facts or merits of the case before they have been determined by the court, potential suitors would be inhibited from availing themselves of courts of law for the purpose for which they are established." As we have stated above, not only does the 1st Petitioner comment on the evidence adduced before this court, upon which this court has not decided, but he also casts aspersions on the integrity and character of one of the parties to the petition, as well as two witnesses, who were in fact called by the Petitioners. This, in our view, amounts to contempt of court and we so find. Having found the Is' Petitioner guilty of contempt, we now must consider an appropriate sentence to impose on him. On 12'" November, 2002 when we dealt with a notice of motion to cite a reporter and editor of the Monitor Newspaper for contempt, we gave notice that we viewed with great concern the statements in the press and comments by the media and some individuals on this particular petition. We gave a warning that we would deal sternly with any individual, be they ordinary persons or politicians or the media, who would make comments or statements on the petition or the evidence adduced this far, which would tend to undermine the holding of a fair trial. Our warning seems to have fallen on deaf ears. What makes the lsl Petitioner's conduct more reprehensible is that he is a party to these proceedings and must have been fully aware of the concerns we expressed in the past and the warning that we gave on statements and comments on the ongoing petition. Having regard to what we have said earlier on, we are satisfied that a fine in the sum of three million Kwacha would be an appropriate sentence on the facts of this case. We so fine the 1st Petitioner which fine is to be paid within seven days of the date hereof failing which, he will serve three months simple imprisonment. E. L. Sakala CHIEF JUSTICE D. M. Lewanika DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE , * 4 » L. P. Chibesakunda SUPREME COURT JUDGE l. M. C. Mambilima SUPREME COURT JUDGE SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE 13