Personation charge against Nchito an abuse of court process – lawyers
By Mercy Nayame
LAWYERS representing State Counsel Nchima Nchito have asked the Lusaka Magistrates’ Court to quash the personation charge against him because it does not reveal any criminal offence.
And Lusaka senior resident magistrate Greenwell Malumani says there was nothing to show that the decision made by the Law Association of Zambia (LAZ) to appoint counsels to represent Nchito was illegal.
Nchito’s lawyers contended that the charge was an abuse of the court process and was meant to intimidate the legal practitioner in the conduct of his profession.
This is in case where former Post employee Abel Mboozi has taken Nchito to court for allegedly personating as a Post Newspapers (in liquidation) lawyer.
After magistrate Malumani dismissed private prosecutor Robson Malipenga’s objection for Nchito to be represented by lawyers appointed by LAZ, Musa Mwenye applied to have the charge against his client quashed.
He said section 90 of the Criminal Procedure Code (CPC) allowed the court to determine that the charge raised disclosed a criminal offence.
“Where it does not, this court has power to refuse to admit the charge,” Mwenye submitted.
He said the section under which Nchito was charged provided that the accused must have an intent to defraud a person.
“We submit that this intent must be stated explicitly in the charge,” Mwenye said.
He said in addition to intent to defraud, the accused must falsely represent himself to other persons who may be dead or alive.
“Again, this ingredient must be apparent on the face of the charge,” Mwenye said.
“We pray that on the strength of the provisions of the Penal Code
under which Nchima Nchito State Counsel is charged, the charge ought to be quashed because it does not reveal any criminal offence and that amounts to an abuse of the court process, to intimidate the legal practitioner in the conduct of his profession.”
After the lengthy submissions by Mwenye, Malipenga applied for an adjournment so that he could look at the authorities and make a meaningful response.
Magistrate Malumani adjourned the case to March 24 for a mention and April 3 for a reply to the application to quash the charge.
Earlier, when Nchito’s case was called, Malipenga informed the
court that the matter was coming for plea.
And Mwenye placed himself on record as the one representing Nchito together with Chisuwo Hamwela and Joshua Kabwe.
Mwenye said he and other defence lawyers had been appointed by the Law Association of Zambia (LAZ) in line with section 4 sub 4 (n) of the Legal Practitioners’ Act which stated that LAZ had a duty to represent and protect its members.
But Malipenga objected to the engagement of lawyers by LAZ, saying it was a statutory body which had powers to sue and to be sued.
Malipenga said LAZ could only appoint counsels who represented its interest.
He said LAZ, as a corporate body, could not appoint lawyers to represent Nchito.
“In that, regard we apply that the three advocates State Counsel Musa Mwenye, Mr Hamwela and Mr Kabwe, being appointed by LAZ, should not represent the accused,” submitted Malipenga who added that the LAZ Act Mwenye referred to was not applicable to criminal matters but issues to do with remuneration.
Ruling on the application, magistrate Malumani said there was nothing illegal to show that the decision made was illegal.
He also said it was not the duty of the court to decide where and
which side counsels came from who must represent an accused.
“Therefore, the objection does not stand and we will proceed,” said