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The Constitutional Court has ordered the removal of Magistrate Davies Chibwili from proceedings in a case where former Lumezi Member of Parliament, Munir Zulu, is challenging his prosecution for criminal libel.
In his petition, Zulu had named the Director of Public Prosecutions, the Attorney General, and Magistrate Chibwili as respondents.
However, Magistrate Chibwili submitted that he could not be sued as he was acting in a judicial capacity when he refused to stay the proceedings against Zulu.
Zulu had applied for the matter to be stayed and referred to the Constitutional Court, arguing that the subordinate court lacked jurisdiction to determine constitutional questions.
Attorney General Mulilo Kabesha supported Chibwili’s position, stating that the proper respondent in the matter was the Attorney General, who serves as the government’s legal representative in civil cases.
Zulu, through his lawyer Joseph Chirwa, did not oppose the application, stating that removing Magistrate Chibwili would not materially affect the petition.
In her ruling, Judge Maria Mapani Kawimbe stated:
“Upon considering that this court has power at any stage of the proceedings under Order 5 Rule 4(a) of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016, to remove a party improperly joined to proceedings, the court hereby grants the first respondent’s prayer and orders that the third respondent be and is hereby struck out of the proceedings.”
Zulu’s petition seeks a declaration that his prosecution for criminal libel is unconstitutional and infringes his parliamentary immunity and privileges.
He also sought an order directing the Chief Resident Magistrate to stay further proceedings, which was denied.
Zulu was subsequently sentenced to 12 months’ imprisonment for making defamatory statements against Finance Minister Situmbeko Musokotwane, Infrastructure Minister Charles Milupi, and Road Development Agency Board Chairperson Eng. Mulchand Kuntawala.
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