Magistrate shocks Fr. Bwalya in “Chumbu Munshololwa” case

Frank-Bwalya

Frank-Bwalya

Alliance for Better Zambian president Frank Bwalya says he is shocked that the Magistrate in his Kasama case has refused to allow him have his case transferred to the High Court.

In a statement to Zambian Eye Wednesday, February 6, 2014, Fr. Bwalya said he had wanted his case be head in the High Court in line with Article 28 (2) of the constitution.

Below is Fr. Bwalya’s full statement to Zambian Eye.

I am shocked that Magistrate Vincent Siloka this morning refused to grant my application to refer my case to the High Court for determination of constitutional issues that I have raised in line with article 28(2) of the Republican Constitution.

I said in my application that the charges I am facing namely defamation of President Michael ChilufyaSata by calling him a ‘chumbumunsholalwa’ border on freedom of expression as continued and guaranteed by the Republican Constitution.”

Representing myself, I cited the case of Dr F. T. J. Chiluba Vs the people (2004) ZR 11 and that of Lt. General Wilford Joseph Fungika Vs the Attorney General (2005) ZR 97 (S.C.). In all these cases learned magistrates referred the matters to the High Court for determination of constitutional issues. I also cited my own case when I was arrested on March 12th 2010 in Kitwe for allegedly distributing red cards at a Youth Day celebration.

I instructed my lawyers to raise constitutional issues and the learned magistrate had no choice but to refer the matter to the High Court in Kitwe. After the constitutional issues I raised were determined, the matter was referred back to the lower court and trial continued until I was acquitted upon being found with no case to answer a year later in 2011.
The constitution is very clear about my right to have the constitutional issues I have raised determined by the proper court, in this case, the High Court. The reason Magistrate Siloka gave to deny me my constitutional right namely that the charges I was facing were very clear is frivolous.

What is even more shocking to me is that the state did not object to my application. What the state prosecutor said was that it would be jumping the gun for me to make the application at the stage I did because it was not yet clear if the matter would proceed given the fact that the Director of Public Prosecution (DPP) had not yet given instructions on whether to proceed or not.

My view now is to seek legal advice to claim my constitutional right to have the issues I have raised determined by a competent court. It is my considered view that it is up to the competent court to dismiss my application and refer the matter back to the lower court if it has no merit and not the lower court to deny me my right. I fear that this position by magistrate Siloka amounts to denying me justice.

Earlier the state said they were not ready to proceed in the matter because instructions from the DPP regarding the second charge of proposing violence had not yet been received. So the matter was adjourned to 4th March 2014. It was after the adjournment that I raised my hand to make 3 applications. One was granted and the other two were denied.

Fr Frank Bwalya
The accused in the Chumbu Munshololwa case, in Kasama.