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Friday, 23 May 2014

President Sata vs Daily Nation

President Sata this week made a much publicised court appearance in the case he has brought against Richard Sakala and the Daily Nation. This is the first time a sitting president has testified in a court case and opened himself up to the possibility of brutal cross examination.

President Sata is suing the Daily Nation over an article they published on 16 May 2012, in which the author Choolwe Beyani suggested that President Sata had ordered the Development Bank of Zambia (DBZ) to fire its lawyers, Vincent Malambo and Company, to protect his friends Fred M’membe and Mutembo and Nchima Nchito from paying back K14 million to the DBZ.

The case has now been adjourned to June 24 after the Daily Nation indicated that they want to beef up their legal team before cross-examining President Sata. It is now that they have inundated with pro bono offers by leading lawyers who want to have the honour of quizzing a sitting president. Social media has become very excited. But it seems to me that it is all much ado about nothing.

The real question is whether President Sata  will actually turn up at all. Even if he does turn up and refuses to answer questions, there's nothing anyone can do. The president enjoys immunity from legal and civil proceedinfs and therefore cannot be compelled to do anything. How he behaves before the courts or another body appears to be a matter of discretion. He can even insult the judge in the cpurt and not be arrested. And of course this being a civil case, the president can always withdraw it.

It goes without saying that I am not a lawyer. So, I thought it was worth putting this question past my good brother Elias Munshya wa Munshya on the legal nuances of President Sata's appearance. Here are his comments:
This is a civil case of defamation commenced by President Sata himself. He chose to litigate this matter by actually appearing to testify. As long as he shows up in the dock, he will be subject to cross-examination by the Defendants.

However, President Sata can still choose to not show up when court reconvenes in June. In fact, the Plaintiff can abandon this claim at any time. If President Sata is in the dock and then he refuses to answer some questions, the court can infer that he is not a reliable witness. The court can also grant little or no weight to his testimony.

President Sata and his counsel could have decided to argue this case differently. But instead they chose to have the President personally go to the dock and testify. This was a tactical mistake. As long as he is in the dock, he will be subject to cross-examination. Cross-examination is very unpredictable and it could jeopardize his case.

I am very unsure about the next steps from the Plaintiff's side. I think they will abandon this case without going any further. I do doubt whether President Sata will show up in June. This case will not go further.

For once, the judge will be uncomfortable to have the Chief-of-State in the dock. That being the case, President Sata still does have recourse to our courts if he feels like his civil or property rights are being infringed. On whether this is one such case where he needed to personally appear is very doubtful to me. This is not such case and he should not have put himself under this kind of scrutiny. As for June, I think this case is over. But Sata being Sata, he could just show up again. And surprise everyone one or two more times.

(Source: Elias Munshya wa Munshya)
I share the above because it reinforces what I have already said. And at present Zambia has no better legal and political commentator than Elias Munshya wa Munshya. You can follow him on his Facebook page - 

Chola Mukanga
Economist | Consultant | Researcher
Copyright © Zambian Economist 2014

1 comment:

  1. Fred M’membe, Mutembo and Nchima Nchito need only sit on their hands a short while longer before paying back K14 million to the DBZ. They have a clause in the loan agreement which means they can pay them back in US Dollars. By the end of this year a ten-dollar bill ought cover it.


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