LAWYERS representing Wynter Kabimba and Fred M’membe have submitted that the prosecution led no evidence to prove that the words complained of by Rupiah Banda defamed him.
This is in a matter where Rainbow Party general secretary and presidential candidate for 2016 Kabimba, Post editor-in-chief M’membe and Post Newspapers Limited are jointly charged with contempt of court and publishing defamatory statements against former president Banda.
According to the submissions on no case to answer filed by Kabimba and M’membe’s defence lawyers Mwenye and Mwitwa Advocates and Nchito and Nchito, the prosecution witness Newton Ng’uni led evidence that he personally was affronted by the article but no evidence was led to show the article defamed Banda.
“No evidence was led to show the article defamed the complainant. Secondly, the prosecution’s witnesses did not lead any evidence that the words complained of were about the complainant,” they submitted.
The lawyers stated that the evidence given by Ng’uni was merely that he felt the words defamed and injured him personally and no mention was made that the words were meant to defame Banda and lower him in the estimation of right-thinking citizens.
They added that Ng’uni’s evidence was merely his opinion and own reaction to being mentioned in the article.
The lawyers also submitted that although the copy of the newspaper article was produced, no evidence was led as to the author of the article or what role M’membe played in its publication.
They stated that the prosecution failed to prove that the duo intentionally published the article to defame Banda and no evidence of the accused’s improper intent was led.
And the defence wondered how M’membe was connected to the charges when the article in question was published by the Post Newspapers Limited.
They stated that the evidence before court was not sufficient to establish beyond reasonable doubt the elements of the two charges against the duo, adding that there was no evidence linking M’membe to the alleged offences.
“No evidence was led to show that A2 [M’membe] published the article in issue. The article was published by A3 [Post Newspapers Limited]. How does A2 come into the picture?” the defence argued.
The defence further stated that the prosecution had failed to prove its case against Kabimba by any standard of proof.
“It is apparent that the only reason the first accused was charged under the second count was simply because he allegedly uttered the words in question. The prosecution clearly failed to distinguish between slander and criminal libel in respect of the first accused. Section 191 of the Penal Code clearly excludes merely spoken words from the definition of the offence of ‘libel’,” the defence submitted.
The lawyers added that there was no evidence led by the prosecution to demonstrate beyond all reasonable doubt that Kabimba published the article in question and as such, the second count could not stand against him.
“As stated by PW2 [ Roy Chilolo], there were pending cases. However, no report of the evidence or issues of the cases was published in the article. The article was a report on the comments and opinions of a member of the public,” they submitted.
Meanwhile, principal resident magistrate Kenneth Mulife granted the prosecution’s application to adjourn to November 2 his ruling on whether or not Kabimba and M’membe have a case to answer.
Prosecution lawyer Keith Mweemba applied for the adjournment to enable them to respond to the defence’s submissions, which they said they only received on Tuesday.