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IN THE SUBORDINATE COURT OF THE FIRST CLASS

OF THE KASAMA DISTRICT
HOLDEN AT KASAMA
(Criminal Jurisdiction)
BETWEEN:

THE PEOPLE Complainant

and

FR. FRANK BWALYA Accused


FINAL SUBMISSIONS

IF IT MAY PLEASE THE HONOURABLE COURT, these are the Final Submissions of the
Accused.

CASES/ AUTHORITIES REFERRED TO

1. Andrew Mujuni Mwenda & Another V Attorney General (Consolidated Constitutional
Petitions No.12 Of 2005 & No.3 Of 2006) [2010] UGCC 5
2. Attorney General v Roy Clarke (2008) Z.R. 38 Vol. 1 (S.C.)

3. Chief Arthur Nwankwo v The State, FCA/E/111/883 (1985) NCLR 228

4. Chimakure & others v The Attorney-General of Zimbabwe SC 14/2013

5. David Dimuna V The People (1988 - 1989) Z.R. 199 (S.C.)

6. Eon v France, ECHR, 26118/10, 14 March 2013

7. Faustine Mwenya Kabwe, Aaron Chungu Vs. Mr. J ustice Ernest Sakala, Mr. J ustice Peter
Chitengi, (J udge Of The Supreme Court) and The Attorney General, Supreme Court
J udgment No. 25 of 2012, (Appeal No. 152/2011)

8. Fred Mmembe , Bright Mwape V The People And Fred Mmembe, Masautso Phiri, Goliath
Mungonge V The People (1996) S.J .

9. Griffin V California 380 US 609 (1965)

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10. Harris v Harris: Attorney-General v Harris [2001] 2 FLR 395.

11. Hector v Attorney General of Antigua and Barbuda (1990) 2 AC 312

12. Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W)

13. J uma and other v Attorney General (2003) AHALR 179 (KeHC 2003)

14. Mbinga Nyambe V The People, Supreme Court, 5/2011.

15. Michael Sata v Post Newspapers Limited and Another (HC) (1995) ZRL,113

16. Murray V United Kingdom (1996) 22 EHRR 29 (Echr).

17. Musupi V The People (1978) ZR 27

18. Pienaar v Argus Printing & Publishing Co 1956 (4) SA 3"1 (W)

19. Pumbum and Another v Attorney General and Another (1993) 2 L.R.C. 317

20. R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115, HL

21. Resident Doctors Association and 51 Others v the Attorney General (1997) HC 23

22. Silungwe V The People (1974) ZR 130

23. Sunday Times v The United Kingdom (No 2) (1992) 14 EHRR, 292

24. The People V Bright Mwape and Fred Mmembe (1995) S.J .

25. The People V Mateyo Mujimaizi J erusalem, High Court, HP/213/2010.

26. The People V Paul Kasonkomona CR No. 9/04/13

27. The People V Robert Phiri and Tenson Siagutu (1980) Z.R. 249 (H.C.)

LEGISLATION REFERRED TO

- Constitution Of Zambia, Chapter 1 of the Laws of Zambia
- Criminal Procedure Code, Chapter 88 of the Laws of Zambia
- Penal Code, Chapter 87 of the Laws of Zambia
- Penal Code (Amendment) Act No. 6 of 1965
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OTHER SOURCES

- African Charter on Human And Peoples Rights

- African Commission on Human And Peoples Rights, Declaration of Principles on Freedom of
Expression in Africa (2002)
- Commentarius ad Pandectas (1698-1704) 48.4.2, quoted in Hocher, S The Crime of
Defamation Still Defensible in a Modern Constitutional Democracy? Obiter (2013)

- Critic and comment of the decision in Mmembe and Mwape v the People, Legality Journal,
2002

- Erwin Chemerinsky in Constitutional Law Principles and Policies, Aspen Law and Business
(1997)

- General Comment and Concluding Observations of the United Nations Human Rights Committee.
- Handbook of Media Laws, 1999.

- I nternational Covenant on Civil and Political Rights (New York 16
th
December, 1966: TS6 (1997)
Comm. 670)
- I reland Law Reform Commission Consultation Paper on the Crime of Libel (1991)

- J ohn Alder in Constitutional and Administrative Law (6
th
edition) Palgrave Macmillan (2007)

- Michael J and Emmerson B Current Topic: the right to silence (1995) European Human
Rights Law Review 4 at 6.

- Van Vechten Veeder, The History and Theory of the Law of Defamation, Columbia Law
Review, Vol. 3, No. 8 (Dec., 1903)

INTRODUCTION

1. This case is a storm in a teacup: it has grossly been exaggerated. Father Frank Bwalya is a Catholic
priest and currently the leader of the opposition political party, Alliance for a Better Zambia. On 6
January 2014 he appeared in a radio broadcast on Radio Mano in Kasama in which he is alleged to
have referred to His Excellency the President, Mr. Michael Sata as a chumbu mushololwa a
Bemba term for a sweet potato. The term, referencing a sweet potato as one which breaks when it is
bent, is used to describe someone who is unwilling to listen to advice. The English word equated to
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the idiom chumbu mushololwa is headstrong. The Oxford Advanced Learners Dictionary at
page 693 defines headstrong as

a headstrong person is determined to do things their own way and refuses to listen to advice

2. The Accused was arrested and charged with defamation of the President under section 69 of the
Penal Code, Chapter 87 of the Laws of Zambia.

3. Section 69 states:

Any person who, with intent to bring the President into hatred, ridicule or contempt, publishes
any defamatory or insulting matter, whether by writing, print, word of mouth or in any other
manner, is guilty of an offence and is liable on conviction to imprisonment for a period not
exceeding three years.

4. Section 214 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia provides that:

The court, having heard both the complainant and the accused person and their witnesses and
evidence, shall either convict the accused and pass sentence upon or make an order against him,
according to law, or shall acquit him.

5. The onus is on the prosecution to prove its allegations against the Accused beyond all reasonable
doubt. It is not the Accuseds onus to prove his innocence and should there be any doubt, it is the
Courts duty to rule for the benefit of the Accused and acquit him. The case of The People V Robert
Phiri and Tenson Siagutu (1980) Z.R. 249 (H.C.) is instructive on this

6. The fundamental right of the Accused to the presumption of innocence until proved guilty by a
competent Court is also guaranteed by Article 18 (1) (a) of the Constitution of Zambia, Chapter 1 of
the Laws of Zambia.

7. For the avoidance of doubt, the Accused denies ever defaming or insulting the President of the
Republic of Zambia as alleged by the prosecution.



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8. The Evidence

The prosecution lined up seven witnesses.

8.1. PW1 was the station manager of radio Mano who confirmed that the Accused did feature on a
paid for live radio programme. He also informed the Court how he learnt about the commotion at
the radio station and the threat on the life of the Accused. He also told the Court how he went to
Kasama Central Police to report the commotion and threats on the life of the Accused. In cross
examination, he said he feared for the life of the Accused.
8.2. PW2 was an employee of radio Mano who moderated the live Radio programme. She told the
Court how she moderated the radio programme and how some people stormed the studios
threatening violence against the guest on the programme, the Accused. When asked in cross-
examination why she did not stop the Accused when he started using insulting language against
the Republican President, she categorically said she didnt stop the Accused because he never
used insulting language. She told the Court that the Accused used the idiom chumbu
munshololwa and hastened to say that the expression was just a Cibemba saying that was not an
insult. She further told the Court that the Accused had used words such as icipuba,
ubuwelewele, ukukanakwata amano and ukukanatontonkanya but again hastened to
mention that the words were not used against the Republican President but in explaining some of
the points that the Accused was making.
After cross-examination, the prosecution had nothing in re-examination. But the Honourable
Court on its own asked PW2 if the expression chumbu munshololwa was not an insult. Again
PW2 categorically said it was not an insult.
8.3. PW3, PW4 and PW5 were witnesses with interests to serve. They identified themselves as
members of the ruling Patriotic Front party with leadership positions in the organs of the ruling
party. These witnesses said the Accused had insulted the Republican President by calling him
chumbu munshololwa, icipuba, tatontonkanya, muwelewele and takwata amano. In cross-
examination they all gave contradictory statements about whether the idiom chumbu
munshololwa was an insult. It is unsafe to rely on the evidence of PW3, PW4 and PW5
8.4. PW6 claimed that he was not a member of any political party but just a concerned local business
man who got incensed about the insulting words the Accused allegedly used against the
Republican President. He was at great pains to explain whether the idiom chumbu
munshololwa was an insult.
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8.5. It was clear that in the circumstances of this case, the evidence of these witnesses namely PW3,
PW4, PW5 and PW6 was hearsay.
8.6. PW7 was the arresting officer. He told the Court that he led a team of police officers in riot gear
to go and save the Accused at Radio Mano where there was commotion. He told the Court that
the Accused had insulted the Republican President by calling him chumbu munshololwa.
He also told the Court that he consulted people about the meaning of the words that the Accused
used against the Republican President and upon being told that the words were insulting, he was
satisfied that the Accused indeed insulted the Republican President and decided to arrest him.
PW7 did not tell the Court who told him that the words were insulting.
8.7 When asked in cross-examination why the police didnt arrest the mob that stormed the studios
of Radio Mano to attack the Accused, PW7 said the police did not find anyone at the studios and
that investigations to arrest the attackers yielded no results.
8.8 The recorded Radio interview of the Accused which gave rise to the charges and arrest was not
played in Court. The words used and the context in which they were used therefore remain
unclear and necessarily ought to create a doubt in the mind of the Court.

9. History and Origin of the Offence

9.1 The offence created by section 69 is a form of criminal defamation broadly defined as the
offence of communicating false statements about an individual that harms that persons
reputation. However, it is a specific form of defamation as it refers to the defamation of a
sovereign. This form, termed seditious libel in English law and crimen laesae venerationis in
Roman-Dutch law is defined by Voet as the crime of disrespect, when the respect due to the
sovereign is violated by some heinous act or saying, though without a hostile intention.
1


9.2 The crime originated in England, in the form of the scandalum magnatum (slander of magnates),
which was created in 1275 by statute. The offence was designed to protect the reputations of the
great men of the realm and did not relate to offending ordinary citizens.

9.2 The crime of scandalum magnatum coalesced into the offence of seditious libel, which was
established by the Star Chamber in 1606 in the De Libellis Famosis case. This case defined
seditious libel as criticism of public persons, the government, or King. This offence persisted

1
Commentarius ad Pandectas (1698-1704) 48.4.2, quoted in Hocher, S The Crime of Defamation Still Defensible in a
Modern Constitutional Democracy? Obiter (2013) at page 135.
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in England, defined as a statement which brings into hatred or contempt the Monarch, her
heirs, the government or its officials, until it was abolished by the Coroners and Justice Act in
2009.

9.4 In Zambia, section 69 was introduced in the Penal Code by the Penal Code (Amendment) Act, 6
of 1965 which was adopted by Parliament soon after independence from Britain. The textual
similarities to the English offence are clear.

9.5 The offence described in section 69 must be distinguished by other forms of criminal defamation
listed in the Penal Code in section 191 198. Those offences fall under the general category of
libel offences, and differ from section 69 in terms of both the person who is being defamed and
the purpose of the offence.

10. Purpose of the Offence

10.1 The scandalum magnatum was designed only to protect those in authority or with power.
Although ostensibly it was used to protect the reputations of those great men of the realm there
was also a political element to the offence. Because the reputations of the individuals it sought to
protect were inextricably linked to the reputation of the government or other institutions in
power, a defamatory statement was deemed to be a danger to the government system in general.
The Irish Law Reform Commission commented that the mischief the statute was sought to
prevent was therefore causing a loss of faith in the government or the monarch and was
therefore a seditious libel.
2


10.2 The American Federal Court judge Van Vechten Veeder also noted the political nature of this
offence and that its purpose was to protect the government rather than the reputation of an
individual. Describing the scandalum magnatum he said that by

protecting none but the great men of the realm who, on account of their noble birth or official
dignity, could not or would not demean themselves either by personal encounter or by resort to
any other jurisdiction than that of their sovereign, these statutes are hardly to be taken as a

2
Ireland Law Reform Commission Consultation Paper on the Crime of Libel (1991), page 3.
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recognition by the royal authority of the right to reputation ... [t]hey were in fact directed
rather against sedition and turbulence than against ordinary defamation.
3



10.3 The political nature of sedition offences is well noted. The renown Law Professor Erwin
Chemerinsky in Constitutional Law Principles and Policies, Aspen Law and Business (1997) on
the long repealed American Alien and Sedition Act of July 14, 1789 states that

The law prohibited the publication of false, scandalous, and malicious writings against the
government of the United States, or either house of the Congress of the United States, or the
President of the United States, with intent to defame the said government, or either house of the
said Congress, or the said President; or to bring them..., into contempt or disrepute or to excite
them... hatred of the good people of the United States, or to stir up sedition within the United
States, or to excite any unlawful combinations therein for opposing or resisting any law of the
United States, or any act of the President of the United States.

The Federalists under President John Adams aggressively used the law against their rivals, the
Republicans. The Alien and Sedition Act was a major potential issue in the election of 1800, ad
after he was elected President, Thomas Jefferson pardoned those who had been convicted under
the law. The Alien and Sedition Act was repealed and the Supreme Court never ruled on its
constitutionality.

10.4 Professor John Alder in Constitutional and Administrative Law (6
th
edition), Palgrave Macmillan
(2007) has observed that
During the eighteenth century, which was punctuated by fear of uprising, seditious libel
was used as a tool of State control. page 497.
10.5 The Federal Court of Appeal (Enugu) in Nigeria, in the case of Chief Arthur Nwankwo v The
State, FCA/E/111/883 (1985) NCLR 228
4
which declared the laws of sedition unconstitutional in
holding that criticism is indispensable to a free society stated as follows:-

The whole idea of sedition is the protection of the person of the sovereign The present
President is a politician and was elected after canvassing for universal votes of the electorate; so
is the present State Governor. They are not wearing constitutional protective cloaks of their
predecessors in 1963 Constitution page 237


3
Van Vechten Veeder, The History and Theory of the Law of Defamation, Columbia Law Review, Vol. 3, No. 8 (Dec.,
1903), pp. 546-573, at 554.
4
This case was cited with support in the Uganda Constitutional Court case of Andrew Mujuni Mwenda and Another v
Attorney General, Constitutional Petition 12 of 2005 and 3 of 2006. That case also declared the seditious offences
unconstitutional. The court held that the Constitution empowers and encourages active criticism in the governance of their
state by citizens.
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Those who occupy sensitive posts must be prepared to face public criticisms in respect of their
office so as to ensure that they are accountable to the electorate They are within their
constitutional rights to sue for defamation but they may not use the machinery of the government
to invoke criminal proceedings to gag their opponents as the freedom of speech guaranteed by
our constitution will be meaningless. Page 252

10.6 These statements illustrate that the purpose of seditious libel offence is not to protect the
reputation of the sovereign or those in power, but to protect the system of government and public
order. Acknowledging this purpose of the offence is important because it influences the
justification of the offence.

10.7 The relationship between the offence and the need to protect public order is also present in
Zambia. Section 69 is located in the chapter in the Penal Code dealing with Offences against
Public Order, rather than in the libel chapter where all other defamation offences are to be found.
This clearly demonstrates that the Zambian legislators intended to use this offence as a way to
control statements made by citizens against the President that may threaten public order. It does
not exist to protect the individual reputation of the President.

11. The Right to Freedom of Expression in Zambia

11.1 The fact that defamation offences criminalise the publishing of statements, verbally or in print,
means that these offences have an impact on freedom of expression.

12. The Zambian Constitution protects the right to freedom of expression in article 20.

1. Except with his own consent, no person shall be hindered in the enjoyment of his freedom
of expression, that is to say, freedom to hold opinions without interference, freedom to
receive ideas and information without interference, freedom to impart and communicate
ideas and information without interference, whether the communication be to the public
generally or to any person or class of persons, and freedom from interference with his
correspondence.

2. Subject to the provisions of this Constitution no law shall make any provision that
derogates from freedom of the press.
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3. Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this Article to the extent that it is shown that the
law in question makes provision:
a. that is reasonably required in the interests of defence, public safety, public order,
public morality or public health; or
b. that is reasonably required for the purpose of protecting the reputations, rights
and freedoms of other persons or the private lives of persons concerned in legal
proceedings, preventing the disclosure of information received in confidence,
maintaining the authority and independence of the Courts, regulating educational
institutions in the interests of persons receiving instruction therein, or the
registration of, or regulating the technical administration or the technical
operation of, newspapers and other publications, telephony, telegraphy, posts,
wireless broadcasting or television; or
c. that imposes restrictions on public officers;

and except so far as that provision or, the thing done under the authority thereof
as the case may be, is shown not to be reasonably justifiable in a democratic
society.

13. It is not necessarily constitutionally problematic that defamation offences (including section 69)
infringe the right to freedom of expression because it is acknowledged that this right is not
absolute and that there are circumstances in which it is justifiable to limit it.

14. Article 20 of the Zambian Constitution explicitly sets out the situations in which the right to
freedom of expression can be limited. There are two broad questions to be asked when
determining whether a limitation to the right is constitutionally permissible. The Court in Fred
Mmembe , Bright Mwape V The People And Fred Mmembe Masautsophiri Goliath Mungonge V
The People (1996) S.J. clearly explained the differences between these two questions. First, a
Court has to determine whether the legislative provision is reasonably required in order to
achieve one of the purposes included in Article 20(3)(a)-(c). This includes a proportionality test,
and reference to the Tanzanian case of Pumbum v Attorney General, (1993) 2 L.R.C 317 Ngulube
CJ said that the limitation of the right must therefore be no more than is reasonably necessary to
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achieve the legitimate object. Second, even if the legislation is reasonably required for one of
those purposes, it must be reasonably justifiable in a democratic society.

15. Any law that is not reasonably required for one of the specific purposes listed in Article 20(3)
will constitute an unconstitutional limitation. However, even if a law passes this first hurdle, but
is found to be not reasonably justifiable in a democratic society it will be unconstitutional and
invalid.

16. Zambian Case Law
16.1 The constitutionality of section 69 has already been determined by the Supreme Court in
Mmembe & Mwape v The People; Mmembe & others v The People in 1996.
5
Judge Ngulube CJ
held that the offence was reasonably required in the interests of public safety, and was
reasonably justifiable in a democratic society.

16.2 The Supreme Court upheld the High Courts finding that section 69 did not violate the protection
of freedom of expression in Article 20 of the Zambian Constitution, nor the prohibition against
discrimination in Article 23

16.3 Judge Ngulube CJ emphasized that no right including the right to freedom of expression is
absolute, and the constitutional rights and freedom are subject to limitations designed to ensure
that the enjoyment of the said rights and freedom by any individual does not prejudice the rights
and freedom of others or the public interest.

16.4 The Judge agreed with the High Court that section 69 is reasonably required to forestall a
possible unpeaceful reaction from the citizens and supporters and to protect the reputation of the
first citizen.
6
He therefore held that section 69 had a legitimate purpose to protect the public
safety and was therefore in the public interest. He also held that the President should not be
regarded as an ordinary citizen for the purposes of defamation, and that [w]hen the public
person [being defamed] is also the Head of State, the public interest is even more self-evident.

5
The Supreme Court hearing was a combined appeal of two cases in which journalists of The Post newspaper had been
charged with defaming the President under section 69 and requested a referral of their cases to the High Court for
determination of the constitutionality of the provision. In both cases the High Court ruled that the provision was
constitutional.
6
Interestingly, when a similar argument was made in the case of Resident Doctors Association and 51 Others v the Attorney
General (1997) HC 23, relating to freedom of assembly and expression, it was held that it has never been the law that people
engaged in lawful pursuits should be stopped to do so in order to appease and please those who want to break the law. The
law does not glorify criminality and criminals.
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16.5 In holding that section 69 was reasonably justifiable in a democratic society (and was therefore
constitutional) both the High Court in The People v Bright Mwape and Fred MMembe and the
Supreme Court in the appeal held that the precise nature of Zambias democracy at that stage in
history was relevant to this discussion.

16.6 The right to criticize the President was also discussed by the Supreme Court in the case of
Attorney General v Roy Clarke (2008) Z.R. 38 Vol. 1 (S.C.). In that case, Roy Clarke faced
deportation after writing a satirical article in the Post newspapers in which he expressed his
dislike for the President. the Supreme Court affirmed the right to freedom of expression:

we re-affirm what we have said before in the previous cases that freedom of expression is one of
the strong attributes of a democratic society and that to the extent permitted by the Constitution
itself, freedom of expression must be protected at all costs and that those who hold public offices
must be prepared, to suffer, and be tolerant, of criticism.

Dr Matibini submitted that the expression of ideas which may be unpopular, obnoxious,
distasteful or wrong is nonetheless within the ambit of freedom of expression as long as there is
no advocacy of or incitement to violence or other illegal conduct. We agree with Dr Matibinis
submissions.

17. I mplications of these Decisions

17.1 The first significant aspect of the Courts reasoning in the Mmembe cases is the determination
that the question of whether a particular law is justifiable in a democratic society is dependent
on the nature of the democracy in that society.

17.2 In the High Court, Judge Chitengi described the fragility of Zambias young democracy at that
stage as follows:

Democracy in Zambia and indeed other third world countries is still young and fragile. I do
not think even for the moment that we have reached or would wish to reach a stage to do what
the Applicants contend for without plunging the country into chaos. It is a notorious fact that
since we got independence the prevailing situation in Zambia has, more often than not, been one
of excitement and stress. Further it is common knowledge that some cross section of our people
13 | P a g e

easily take to the streets when merely infelicitious remarks are made against their party and
party leaders. The demonstrations can be quite serious when the subject of ridicule is the
President himself. Our newspapers are full of stories on inter-party fights.

17.3 In the Supreme Court, Ngulube CJ approved of the approach taken by the High Court and stated
that it was not a misdirection to have regard to the conditions and the level of democracy in
Zambia when testing whether the particular section of the Penal Code was reasonably justifiable
in a democratic society. He also referred to a previous decision of his, in Michael Sata v Post
Newspapers Limited and Another (HC) (1995) ZRL, 113 in which he had said that we are at
different stages of development and democratization and the Courts in each country must surely
have regard to the social values applicable in their own milieu.

17.4 These comments indicate that Zambian Courts have accepted that the standards for democratic
societies are fluid and that the inquiry is a subjective one, dependent on the status of democracy
in Zambia at the time of the adjudication. Twenty years have passed since the Supreme Court
ruled that section 69 was constitutional, and it cannot be denied that Zambian democracy has
matured and that now the balance between two competing rights and interests may have
drastically shifted. It may even be argued that it would amount to questioning the intelligence of
Zambian to assert that the development of Zambian democracy has not shifted since 1995 when
the Mmembe cases were decided.

17.5 Another important aspect of the Courts reasoning in the Mmembe cases is that both Courts
agreed that section 69 does not criminalise all criticisms of the President. The High Court Judge
held that [s]ection 69 does not deprive any citizen the right to legitimately criticise the President
or the Government.

17.6 The High Court held that although criticism is permitted, there were no jurisdictions that allow
for the proposition that in a democratic state one can criticise the head of state or the
government in any manner however, scurrilous, malicious and destructive of the President or
Government Institutions. The High Court accepted the states argument that the the criticism
required in a democratic society is acceptable criticism, and defined what he meant by
acceptable criticism.

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In other words legitimate criticism motivated by desire to ensure that government affairs are
properly run for the public good or criticism by a politician in the opposition to expose the
shortcomings of the President and Government in power so that he can wrestle political power
from them at the next election and use it to the benefit of the country.

17.7 The Court therefore stated that the crisp issue is therefore what kind of criticism is allowed.
Therefore, the question would be in any case where section 69 is involved whether the criticism
that has been identified is without or outside the constitutionally permissible limits.

17.8 The effect of this is that criticism of the President is not enough to warrant a conviction under
section 69 and so a Court would not only have to find that there had been criticism, but that the
criticism had not been legitimate criticism or criticism by a politician in opposition to expose the
shortcomings of the President.

17.9 In Fred Mmembe , Bright Mwape V The People And Fred Mmembe, Masautso Phiri, Goliath
Mungonge V The People (1996) S.J. Ngulube CJ had explained that a constitutional challenge
can be brought in two different situations: if the law itself exceeds what is constitutionally
permissible; and if the law is constitutional but conduct taken under that law exceeds the
constitutionally permissible limits.

In the first situation, it is the impugned law itself which would be liable to be struck down. In
the second situation, it would be the action taken and not be (sic) legislation which should be
held to be unconstitutional. In my considered view, the first kind of situation is what lends itself
to the type of purely technical and legalistic litigation involved in the instant case while the
second situation requires fuller investigation into the facts and circumstances such as one might
find at a trial or upon some evidence being tendered.

17.10 Therefore, legitimate criticism or criticism by a politician in opposition to expose the
shortcomings of the President should not be seen as an offence and lead to a charge under section
69. This entails a narrow interpretation of section 69.

17.11 In the case of Faustine Mwenya Kabwe, Aaron Chungu Vs. Mr. Justice Ernest Sakala, Mr.
Justice Peter Chitengi, (Judge Of The Supreme Court) and The Attorney General., Supreme
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Court Judgment No. 25 of 2012, (Appeal No. 152/2001) at page 30, the Supreme Court of
Zambia pronounced itself on the interpretation of fundamental rights when it stated as follows:-

the provisions conferring the rights and freedoms should not be narrowly construed but
stretched in favour of the individual so as to ensure that the rights and freedoms so conferred are
not diluted. The individual must enjoy the full measure and benefits of the rights so conferred
and in this respect, any derogations to the rights will usually be narrowly or strictly construed.

17.12 In a recent case of Chimakure & others v The Attorney-General of Zimbabwe SC 14/2013 in the
Supreme Court in Zimbabwe, the Court discussed the important role Courts have in ensuring that
the right to freedom of expressions is not impermissibly limited.

It is the duty of the Court as guardian of the constitution and fundamental human rights and
freedoms to ensure that only truly deserving cases are added to the category of permissible
legislative restriction of the exercise of the right to freedom of expression. Page 22

17.13 The Court also noted the importance of interpreting offences that limit the right to freedom of
expression narrowly.

As the offence relates to expression, state of mind and effects on attitudes of people it was
imperative that it be narrowly drawn and specifically tailored to achieve the objective so as not
to inhibit expression which does not require that the ultimate sanction of the criminal law be
brought to bear page 65

17.14 The purpose of section 69 is also relevant in this regard. As it is designed to protect public safety
and security, criticism that does not constitute a threat should not amount to an offence.

17.15 Further, in the case of Attorney General v Roy Clarke, the Supreme Court made it clear that
Clarkes reference to the government leaders as animals was metaphorical and not literal. The
Court agreed that the language used was crude but found that deportation was a disproportionate
response.

17.16 This Honourable Court is also humbly invited to take judicial notice of the recourse by the
President of the Republic of Zambia to sue for defamation in the civil proceedings in the High
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Court of judicature for Zambia before Honourable Justice Florence Lengalenga instead of the
State invoking the Penal Code provisions or offences of defamation.

17.16 The decision in the case of Mmembe & Mwape v The People has been criticized. The
constitutional academic, the late AW Chanda, noted that section 69 was vague and undesirable
in a democracy because of its effect of stifling freedom of speech
7
. This concern was restated by
C Kafunda.
8


17.17 On the other hand, the danger that vague laws pose to freedom of expression was also
highlighted in the same Zimbabwean case of Chimakure & others v The Attorney-General.

[I]f arbitrary and discriminatory enforcement is to be preventable laws must provide explicit
standards for those who apply them. The discretion of those entrusted with law enforcement
should be limited by clear and explicit legislative standards. This is especially important in the
use of criminal law because people are potentially liable to deprivation of personal liberty if their
conduct is in conflict with the law.

A vague law impermissibly delegates basic policy matters to policemen, prosecutors and judges
for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application. page 28-29

18 Legitimate Criticism and Freedom of Expression

18.1 Many Courts around the world have recognized the important role freedom of expression plays
in a democracy. It is particularly important in holding those in power accountable.

18.2 In South Africa, Judge Cameron (then in the Johannesburg High Court) in the case of Holomisa
v Argus Newspapers Ltd 1996 (2) SA 588 (W) emphasized the links between freedom to criticize
those in power and the success of a constitutional democracy as follows:.


7
Handbook of Media Laws, 1999
8
Critic and comment of the decision in Mmembe and Mwape v the People, Legality Journal, 2002, p47.
17 | P a g e

The success of our constitutional venture depends upon robust criticism of the exercise of power.
This requires alert and critical citizens. page 609

18.3 It has also been noted that criticism of authority is often not done in perfectly respectful language
but that this should not automatically make it wrong. This was memorably explained in the
1956 South African judgment of Pienaar v Argus Printing and Publishing Company Ltd 1956 (4)
SA 310 (W).

Although conscious of the fact that I am venturing on what may be new ground I think that the
Courts must not avoid the reality that in South Africa political matters are usually discussed in
forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too,
that the public and readers of newspapers that debate political matters, are aware of this. How
soon the audiences of political speakers would dwindle if the speakers were to use the tones,
terms and expressions that one could expect from a lecturer at a meeting of the Ladies
Agricultural Union on the subject of pruning roses! page 318 C-E

18.4 Although referring specifically to criticism of judges, English Judge Mumby of the Family
Division of the High Court in the case of Harris v Harris: Attorney-General v Harris [2001] 2 FLR,
395 said that language used should not overrule the content of a statement.

that which is lawful if expressed in the temperate or scholarly language of a legal periodical or
the broadsheet press does not become unlawful simply because expressed in the more robust,
colourful or intemperate language of the tabloid press or even in language which is crude,
insulting and vulgar.

18.5 When looking at the constitutionality of these types of offences, many Courts have emphasized
the need not to stifle criticism in a democratic society. In a case declaring the false news
offence unconstitutional, the Privy Council noted in Hector v Attorney General of Antigua and
Barbuda (1990) 2 AC 312

If a particular false statement although likely to undermine public confidence in the conduct
of public affairs is not likely to disturb public order, a law which makes it a criminal offence
18 | P a g e

cannot be reasonably required in the interests of public order by reference to the remote and
improbably consequences that it might possibly do so.

18.6 In Chimakure and others v The Attorney-General of Zimbabwe, the Supreme Court in Zimbabwe has
also declared that provisions criminalizing the publishing of false news were unconstitutional.
This provision fell under the category of crimes against the state and so, like section 69 of the
Zambian Penal Code, was seen as doing more than merely protecting reputations. The Court
declared that because the provision applied to cases where the publication did not cause any
harm it was overbroad, disproportional and therefore unconstitutional.

18.7 In a case on point, the European Court of Human Rights, in March 2013, in Eon v France, ECHR,
26118/10, 14 March 2013 declared that the French law which criminalises insulting the President
was a violation of the right to freedom of expression.
9
In its reasoning, the European Court of
Human Rights held that the 1881 law has a chilling effect on satirical contributions to discussion
of matters of public interest, such discussion being fundamental to a democratic society.

18.8 The European Court of Human Rights has also acknowledged that criticism that may shock
should also be protected by the right to freedom of expression. In Sunday Times v The United
Kingdom (No 2) (1992) 14 EHRR 229, the Court held that freedom of expression is

applicable not only to information or ideas that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom
of expression, as enshrined in Article 10, is subject to a number of exceptions which, however,
must be narrowly interpreted and the necessity for any restrictions must be convincingly
established. para 50 (a) page 241

18.9 These authorities demonstrate that the decisive factor in determining whether a statement
constitutes legitimate criticism for the purposes of section 69 should be the content of the
statement rather than the nature of the words used.


9
The French Parliament has since repealed this offence.
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18.10 The existence of seditious libel offences indicates that certain exercises of freedom of expression
are regarded as threatening the security of a state. However, there are also dangers to public
order in suppressing expression.

18.11 Although the protection of free speech in the American system is less restricted then in Zambia
Mr Justice Brandeis, in Whitney v California 274 US 357, 375 376, acknowledged the founding
fathers recognition of the need for free expression.

But they knew that order cannot be secured merely through fear of punishment for its infraction
that it is hazardous to discourage thought, hope and imagination; that fear breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is
good ones. Believing in the power of reason as applied through public discussion, they eschewed
silence coerced by law.

18.12 The case of Whitney v California was recently authoritatively referred to in the acquittal of Paul
Kasonkomona by the Subordinate Court before Honourable Lameck Ngambi in the case of The
People V Paul Kasonkomona CR No. 9/04/13

18.13 The Courts of the United Kingdom have also recognized the role freedom of speech can play in
protecting the safety of a state. For example, in R v Secretary of State for the Home Department,
Ex parte Simms [2000] 2 AC 115, HL, it was stated:-

The free flow of information and ideas informs political debate. It is a safety valve: people are
more ready to accept decisions that go against them if they can in principle seek to influence
them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of
errors in the governance and administration of justice of the country. page 126

18.14 In the Chimakure case, the Zimbabwean Supreme Court also acknowledged the relationship
between freedom of expression and public order.

A law cannot be used to restrict the exercise of freedom of expression under the guise of
protecting public order when what is protected is not public order. This is because the
20 | P a g e

maintenance of public order or preservation of public safety is synonymous with the protection of
fundamental human rights and freedoms. The State cannot therefore violate fundamental human
rights and freedoms under the cover of maintaining public order or preserving public safety.
page 40

18.15 In determining whether a statement is defamatory under section 69, consideration should be
given to whether or not it does threaten public order. As the existence of the offence is to protect
public safety, it should be weighed up whether the statement itself would put order at risk, or
whether the outlawing of such statements may do more harm.

18.16 Freedom of Expression is included as a fundamental right in the Universal Declaration of Human
Rights, the International Covenant for Civil and Political Rights, and the African Charter on
Human and Peoples Rights to which Zambia is a signatory.

18.17 In the case of Micheal Sata V Post Newspapers Limited And Another (HC) (1995) ZRL, 113, M.
M. W. Ngulube, C.J noted with approval the acceptance of international instruments in
interpretation of domestic law in domestic litigation and specifically referred to the International
Covenant on Civil and Political Rights (New York, 16
th
December, 1966: TS6 (1977) Comm.670
2 ) art, 19 and the Convention for the Protection of Human Rights and Fundamental Freedoms
(Rome, 4
th
November, 1950: TS 71 (1953); comd 8969, art 10 and African Charter on Human
and Peoples Rights, art 9.mk

18.18 Moreover, Zambia accepted its obligations under various international and regional treaties by
acceding to or ratifying them but has yet to domesticate such treaties. Thus, in the Zambia High
Court case of Longwe V Inter Continental Hotels (1993) 4 LRC, 221, Justice Musumali stated,
ratification of such instruments by a national state without reservations is a clear testimony of
the willingness by the state to be bound by the provisions of such (instruments). Since there is that
willingness, if an issue comes before this court which would not be covered by local legislation
but would be covered by such international (instrument), I would take judicial notice of that
treaty convention in my resolution of the dispute.

21 | P a g e

18.19. The African Commission on Human and Peoples Rights (African Commission), which is
responsible for monitoring compliance with regional human rights treaties, in Legal Resources
Foundation V Zambia, Comm. 211/98 noted that

international treaties which are not part of domestic law and which may not be directly
enforceable in the national courts, nonetheless impose obligations on State Parties.

18.20. Article 9(2) of the African Charter on Human and Peoples Rights (ACHPR) provides that every
individual shall have the right to express and disseminate his opinions within the law.

18.21 The African Commission, in the case of Constitutional Rights Project And Others V Nigeria,
(2000) AHRLR 227 (ACHPR 1999), held that

freedom of expression is a basic human right, vital to an individuals personal development and
political consciousness, and participation in the conduct of the public affairs of his country.
Under the African Charter, this right comprises the right to receive information and express
opinions (para 26).

18.22 Similarly, in the case of Law Office Of Ghazi Suleiman V Sudan (Ii) (2003) AHRLR 144 (ACHPR
2003), the African Commission emphasised the right to freedom of expression as a cornerstone of
democracy. Citing the Inter-American Court of Human Rights, the African Commission noted
that

when an individuals freedom of expression is unlawfully restricted, it is not only the right of
that individual that is being violated, but also the right of all others to receive information and
ideas (para 50).

18.23 The African Commission on Human and Peoples Rights Declaration of Principles on Freedom
of Expression in Africa (2002) states the following:

Freedom of expression and information, including the right to seek, receive and impact
information and ideas, either orally, in writing or in print, in the form of art, or through any
other form of communication, including across frontiers, is a
22 | P a g e

fundamental and inalienable human rights and an indispensable component of democracy.
Everyone shall have an equal opportunity to exercise the right to freedom of expression and to
access information without discrimination.
No one shall be subject to arbitrary interference with his or her freedom of expression.
Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest
and be necessary in a democratic society.
Freedom of expression imposes an obligation on the authorities to take positive measures to
promote diversity.

18.24 Article 19 of the ICCPR deals with the right to freedom of opinion and expression:

19(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any other media of
his choice.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only
be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.

18.25 The Human Rights Committee (HRC) in General Comment 34 elaborates on the content of this
right. (CCPR/C/GC/34, 12 September, 2011). The HRC notes that freedom of opinion and
expression are indispensable conditions for the full development of the person and are essential
for any society:

They constitute the foundation stone for every free and democratic society (para 2);
Freedom of expression is a necessary condition for the realisation of the principles of
transparency and accountability that are, in turn, essential for the promotion and protection of
human rights (para 3);
Freedom of expression includes discussion of human rights (para 11); and
23 | P a g e

Freedom of expression extends to expression that may be regarded as deeply offensive (para
11).

18.26 The HRC held in General Comment 24 that the harassment, intimidation or stigmatisation of a
person, including arrest, detention, trial or imprisonment for reasons of the opinions they may
hold, constitutes a violation of article 19(1) (para 9).

18.27 Article 19 allows for limitations similar to that in section 20 of the Zambian Constitution. Section
20 allows for restrictions provided by law and which is reasonably justifiable in a democratic
society. Article 19 of the ICCPR similarly provides that restrictions must be provided by law
and must conform to the strict tests of necessity and proportionality.

18.28 General Comment 34 provides that restrictions on the exercise of freedom of expression may not
put in jeopardy the right itself (para 21). The law must be formulated with sufficient precision
to enable an individual to regulate his or her conduct accordingly and may not confer unfettered
discretion for the restrictions of freedom of expression on those charged with its execution and
laws must provide sufficient guidance to those
charged with their execution to enable them to ascertain what sorts of expression are properly
restricted and what sorts are not (para 25).

18.29 Regarding restriction of freedom of expression on the ground of public health or morals, the HRC
notes that the concept of morals derives from many social, philosophical and religious traditions;
consequently, limitations for the purpose of protecting morals must be based on principles not
deriving exclusively from a single tradition and any such limitations must be understood in the
light of universality of human rights and the principle of non-discrimination (para 32).

18.30. Restrictions must be necessary for a legitimate purpose (para 33), must not be overbroad (para
34), must conform to the principle of proportionality, must be appropriate to achieve their
protective function, must be the least intrusive instrument amongst those which might achieve
their protective function and must be proportionate to the interest to be protected (para 34).

24 | P a g e

The principle of proportionality has to be respected not only in the law that frames the
restrictions but also by the administrative and judicial authorities in applying the law (para 34).
(emphasis ours)


19. Witness with an interest to serve

19.1 PW3, PW4 and PW5 are confirmed political party carders. They fall in the category of witnesses
discussed in the case of Musupi V The People (1978) ZR 27 in which it was held that:

So far as we are aware in all the cases in which the matter has been discussed, has been
careful to refer to a witness with a possible interest or witness who may have a
purpose of his own to serve All these extracts make it clear that the critical
consideration is whether the witness does not in fact have an interest or purpose of his
own to serve, but whether he is a witness who, because of the category into which he falls
or because of the particular circumstances of the case, may have a motive to give false
evidence. Once in the circumstances of the case this is reasonably possible, or in the
words of Lord Hailsham can reasonably be suggested, the danger of false implication is
present, and must be excluded before a conviction can be held to be safe. One does not
hold such witnesses to be accomplices; one approaches the evidence of witnesses in the
same way as accomplices. Recently cited in The People V Mateyo Mujimaizi Jerusalem,
High Court, HP/213/2010.

19.2 This case was cited with approval by the Supreme Court in Mbinga Nyambe V The People,
Supreme Court, 5/2011.

20. Failure to play the Radio interview in Court

20.1 The failure by the prosecution to cause the Radio interview recording giving rise to the charge to
be played or listened to during the proceedings cannot pass without comment. In the case of
Silungwe V The People (1974) ZR 130 it was held that:

Though the prosecution has no duty to call every possible witness, failure to carry out proper
investigations or to call material witness, might cause serious doubt upon the fairness of the
trial to such an extent that it would be unsafe to convict.

25 | P a g e

20.2 In any case, every Accused person has a fundamental right to be afforded a fair hearing under
Article 18 (1) (a) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia.

20.3 In the iconic Kenyan case of Juma and other v Attorney General (2003) AHALR 179 (KeHC
2003), the High Court of Kenya held that

[8.] It is an elementary principle in our system of the administration of justice, that a
fair hearing within a reasonable time, is ordinarily a judicial investigation and listening
to evidence and arguments, conducted impartially in accordance with the fundamental
principles of justice and due process of law of which a party has had reasonable notice
as to the time, place and issues or charges, for which he has had a reasonable
opportunity to prepare, at which he is permitted to have the assistance of a lawyer of his
choice as he may afford and during which he has a right to present his witnesses and
evidence in his favour, a right to cross-examine his adversary's witnesses, a right to be
apprised of the evidence against him in the matter so that he will be fully aware of the
basis of the adverse view of him for the judgment, a right to argue that a decision be
made in accordance with the law and evidence. The adjective 'fair' describing the
requisite hearing requires the court to ensure that every hearing or trial is reasonable,
free from suspicion of bias, free from clouds of prejudice, every step is not obscure, and
in whatever is done it is imperative to weigh the interest of both parties alike for both,
and make an estimate of what is reciprocally just. The processing and hearing or trial of
a case must be free from prejudice, favouritism and self interest; and the court must be
detached, unbiased, even-handed, just, disinterested, balanced, upright and square.
There must be shown all the quantities of impartiality and honesty. So a fair hearing is
one which has the following minimum elements present. It must be one: (1) where the
accused's legal rights are safeguarded and respected by law; (2) where a lawyer of the
accused's choice looks after his defence unhindered; (3) where there is compulsory
attendance of the witnesses if need be; (4) where allowance is made of a reasonable time
in the light of all prevailing circumstances to investigate, properly prepare and present
one's defence; (5) wherein an accused person's witnesses, himself, or his lawyer are not
intimidated or obstructed in any improper manner; (6) wherein no undue advantage is
taken by the prosecutor or anyone else, by reason of technicality or employment of a
statute as an engine of injustice; (7) wherein witnesses are permitted to testify under the
26 | P a g e

rules of the court within proper bounds of judicial discretion and under the law
governing testimony of witnesses; and (8) where litigation is open, justice is done, and
justice is seen to be done by those who have eyes to see, free from secrecy, mystery and
mystique.

20.4 The failure by the prosecution to cause the playing of the radio interview giving rise to the
proceedings herein falls far short of the requisite threshold for a fair hearing.

21. Accuseds right to remain silent

21.1 We repeat that the prosecution bears the onus of proof and the Accused carry no onus to prove
their innocence. The People V Robert Phiri And Tension Siagutu (1980) ZR 249 (HC).

21.2 The court should not draw a negative inference from the Accuseds decision not to testify, as this
would shift the burden from the prosecution to the Accused. The Constitution cannot grant a
fundamental right and then penalise the person who chooses to exercise it.

21.3 The US Supreme Court in Griffin V California 380 US 609 (1965) held that comment on a
refusal to testify is a remnant of the inquisitorial system of criminal justice which the Fifth
Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It
cuts down on the privilege by making its assertion costly.

21.4 The UN Human Rights Committee, in General Comment 13, has accordingly also confirmed
that, by reason of the presumption of innocence, the burden of proof of the charge is on the
prosecution and the accused has the benefit of the doubt. No guilt can be presumed until the
charge has been proved beyond reasonable doubt.

21.5 The European Court of Human Rights has also stated that the right to silence was an inherent
element of a fair trial and that the right to a fair trial would be violated if the defendant was
convicted solely or mainly on the basis of his exercise of the right to silence. Murray V United
Kingdom (1996) 22 Ehrr 29 (Echr).

27 | P a g e

21.6 These principles were confirmed in Zambian courts. For example, the Supreme Court has held
that a court must not hold the fact that an accused remains silent against him. David Dimuna V
The People (1989) SJ (Sc).

22. Conclusion

22.1 In the Mmembe cases, the Supreme Court ruled that section 69 is constitutional. The Court
however did explain that the fragile nature of Zambian democracy in 1995 was a factor in their
finding that the offence was reasonably justifiable in a democratic society, and we submit that
in 2014 Section 69 may not be justifiable and in the circumstances of this case. Therefore, it is
important that section 69 is narrowly interpreted by this Honourable Court in order to give effect
to protected freedom of expressions including the right to hold an opinion.

22.1 We lastly submit that in finding that the provision was constitutional, in the Mmembe cases, the
Supreme Court emphasized that not all criticism is outlawed. Therefore, Father Bwalyas
chumbu mushololwa statement-headstrong in English- amounts to criticism not criminalized
by section 69 in that;

(i) the statement falls under the category of legitimate criticism coming from a politician
who is a President of an opposition political party.

(ii) the statement was not intended to threaten public order. In relation to public order, we
restate the holding in the Zimbabwean Supreme Court case of Chimakure and others v The
Attorney-General (already cited) at page 40, that;

A law cannot be used to restrict the exercise of freedom of expression
under the guise of protecting public order when what is protected is not
public order. This is because the maintenance of public order or
preservation of public safety is synonymous with the protection of
fundamental human rights and freedoms. The State cannot therefore violate
fundamental human rights and freedoms under the cover of maintaining
public order or preserving public safety.

28 | P a g e

(iii) in fact, criticism including strong criticism must be allowed to ensure public order by
allowing dissatisfaction to be expressed.

22.3. In view of the forgoing, we humbly submit that this Honourable Court finds that the prosecution
has totally failed to prove the allegations against the Accused beyond all reasonable doubt and
urge the Honourable Court to accordingly acquit the Accused.

So we submit.

Dated this 30
th
day of June, 2014


Per: Messrs. SBN Legal Practitioners
Plot 4833, Los Angeles Boulevard
Longacres
P.O. Box 50843
LUSAKA

Telephone: (0211) 251784

Email: sbn@zamtel.zm

Advocates for the Accused


TO: The Public Prosecutions Officer
KASAMA