Fred M'membe and Anor v The People (Appeals No. 87 and 107 of 1995) [1996] ZMSC 60 (11 April 1996)

IN THE SUPRE1\.1E COURT FOR ZAMBIA SCZ JUDG1\.1ENT NO. 5 OF 1996 HOLDEN AT LUSAKA (Civil Jurisdiction) APPEALS NO. 87 AND 107 OF 1995 BETWEEN: FRED tvf'MEwffiE 1 ST APPELLANT BRIGHT MW APE 2ND APPELLANT vs THE PEOPLE RESPONDENT AND FRED M'MEMBE 1ST APPELLANT MASAUTSO PHIRI 2ND APPELLANT GOLIATH NIUNGONGE 3RD APPELLANT vs THE PEOPLE CORAM:: NGULUBE, CJ., SAK. ALA AND CHA. ILA JJS on 23rd January and 11th April, 1996 For the Appellants - Messrs J. Sangwa and R. Simeza of Simeza Sangwa and Company For the Respondents - Mr. A. G. Kinariwala, Principal State advocate ... \ ' ' ·' , . : I I • ; . ·' . ' , . : .. 1 : - ·," ) . .. • r:~: .... ~ }-. !' . NGULUBE, CJ. JUDGMENT There are two appeals which have been heard together. In one case Bright Mwape and Fred Mmembe are facing a charge of defamation of the President, contrary to S.69 of the Penal Code. They requested the learned trial magistrate to refer the case to the High Court under Article 28(2)(a) of the constitution for the senior court to determine the constitutionality of S.69 of CAP 146. Chitengi, J, heard arguments and submissions (to which I will be referring) and in a well-researched and well-reasoned judgment, he held to the effect that S.69 did not contravene Articles 20 and 23 of the constitution as contended by the accused so as to be .... ,, I . ,,,. .. . caught by the provisions of Article 1(2) of the constitution which nullify any law found to be inconsistent with the constitution. In the other case, Fred Mmembe, Masautso Phiri and Goliath Mungonge are facing a variety of charges one of which is again defamation of the President contrary to S.69 of the Penal Code. The learned judge (Mrs. Mambilima, J) summarily adopted the ruling of Chitengi, J, in the other case and sent the case back to the Subordinate Court for the trial to proceed. Apparently, there was neither a proper hearing nor a decision on the merits and such a procedure appears not to be supported by the law or practice. However, since the real issue relates to the constitutionality of S.69 of the Penal Code and since this has been the basis of the appeal, I say no more about the \earnedjudge1s summary disposal of the case. The real issue is common to both cases. S.69 of the penal code was introduced into the statutJby the Penal Code (Amendment) Act, no. 6 of 1965, which was assented to on 11th January 1965, just a few months after independence. The Section reads --- " S 69. Any person who, with intent to bring the President into hatr1;d, 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. " When the constitutional reference came up before Chitengi, J, it was contended that S.69 is in conflict with Articles 20 and 23 of the constitution. The relevant parts of Article 20 for the purposes of this case read---- 1120.( l) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, ............... 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, .................................... .. (2) (NIA) Nothing contained in or done under the authority of any law (3) 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 (c) (NIA) ............................. ) 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". When interpreting constitutional provisions regarding the fundamental rights and freedoms for the purpose of ascertaining the validity of a subordinate law, I find it absolutely necessary to bear in mind the injunction in Article 11 that, far from being absolute the rights and freedoms are subject to limitations "designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest". This much was common ground. I also bear in mind that the major object of interpretation is the ascertainment of the intention expressed by the legislature. This indeed is the fundamental rule of interpretation of all enactment's to which all other rules are subordinate. Since the court's duty is to find out the expressed intention of the legislature and to construe enactment's according to such intent, it follows, as a full bench of this court put it in SAMUEL l\1IY ANDA -v RA YMOND HANDAHU SCZ Judgment No. 6 of 1994, that -- "When the language is plain and there is nothing to suggest that any words are used in a technical sense or that the context requires a departure from the fundamental rule, there would be no occasion to depart from the ordinary and literal meaning and it would be inadmissible to read into the tenns anything else on grounds such as of policy, expediency, justice or political exigency, motive of the framers, and the like." As the quotation from Article 20 shows, the legislature qualified the right to free expression by a number of exceptions if shown to be reasonably required for any one or more of the purposes enumerated. The only exception to this is if "that provision", that is to say, if the challenged law itself or, in the alternative, "the thlng done under the authority thereof' is shown not be reasonably justifiable in a democratic society. The ordinary and literal meaning of the reference to "that provision" and to 'the thing done under the authority thereof'' plainly indicates that two situations of possible unconsitu tionality should be distinguished: The first is where the legislation or the law is itself clearly in excess of the constitution; the second is where the legislation or the law is clear and within the constitution but the action taken under such law exceeds what is pennitted by I. t~e Constitution. 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 the 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. I have taken the trouble to highlight the distinction between the two situations because, from the way the arguments proceeded both below and here, this distinction was blurred. For example, counsel for the accused opened his submissions below by contending quite boldly that truth would not be a defence to a charge under S. 69. This is startling and highly debatable. In any case, it seems to me that the range and scope of the possible defences can not be a factor to be taken into account at tltis stage where the section is being considered simply in absolute terms as it stands viz a viz the Articles of the Constitution relied upon. In other words, is S.69 clearly in excess of the Constitution or not? At the hearing below, there was an issue whether the accused persons had shown on a balance that their enjoyment of the freedom of expression was, becaus~ of the prosecution under S.69, being or likely to be hindered. Th~ learned trial judge found for the accused and in this he followed the decision of the High Court (Blagden, C. J.) in KACHASU -v- ATTORNEY-GENERAL (1967)ZR 145. The learned ChiefJustice in that case drew inspiration and support from thirteen cases all decided in a variety of foreign courts and held, among other things, to the effect that even a slight degree of hindrance, not necessarily amounting to prevention, sufficed to discharge an aggrieved person's burden of showing a contravention of the constitutional freedoms. I have no reason to disagree with Blagden, CJ. The exceptions in article 20(3) refer to the law in question making provision that is reasonably required for one or more of the objects listed. A question was raised below and answered against the accused whether S.69 was reasonably required for any of the listed objects. In this appeal, it was argued that the learned judge was wrong to find that the section was reasonably required for the sake of public order. It was argued that, according to the speeches in Parliament, as reflected in the relevant Hansard, the provision was more concerned with the dignity of the state than with Public Order. Counsel for the State invited us to consider as significant the fact that S.69 was inserted in the Chapter of the Penal Code headed "Offences against Public Order." I have considered the submissions and let me state also that I have no objections to lool<lng at the Hansard especially if there is some doubt on the backdrop or on the face of the language of an enactment. However, in this instant case, I can see no justification for resorting to the Hansard when answering the question whether S.69 is within or without the permitted exceptions under Article 20(3). This is because I find the language of S.69 such that the fundamental rule of interpretation earlier adumbrated is applicable. However, to say that the learned trial judge simply found that S.69 was reasonably required for the sake of public order does not do justice to the very elaborate and lengthy treatment of the subject in the judgment below. The judge infact considered the importance of the freedom of expression; he considered the chiiling effect of the law of defamation and similar laws on the freedom; he noted how defamation was a criine as well as an actionable wrong and the historical differences between the crime and the civil wrong, citing authorities that supported _the need to punish in a more public fashion the criminal type of libel where it is in the public interest that criminal ·proceedings should be brought. The learned judge went on to observe that the accused appeared quite prepared to suffer hindrance of their freedom of expression by civil libel actions but were averse to criminal pro·secutions. The learned trial judge then went on to consider who bore the burden \ .. of proof under the exceptions and in the process criticised, quite properly in my view, the su-t:alled presumption of constitutionality as applied in KACHASU in favour of the more acceptable approach ofMagnus, J, in PATEL -v- ATTORNEY-GENERAL (1968)ZR 99. For the record, I would like to associate myself with the approach of the judge below and I add my own observation: Article 20(3) envisages two scenarios being "shown" to the court, that is, case one where it is shown - no doubt by the one relying upon it such as the state -- that the law in question makes provision "that is reasonably required" (with a subcase where for instance an aggrieved citizen wishes to show on balance that it is not reasonably required) and case two where the law or the thing done under it" is shown not to be reasonably justifiable in a democratic society" -· no doubt shown on a balance by for example an aggrieved citizen. After dealing with the burden of proof, the learned judge below proceeded to consider the obj ective test to be applied in determining the alleged inconsistency of the law with the constitution and also considered the real effect and impact of that law on the fundamental right in question; he discounted any arguments based on the availability or otherwise of defences; and he dealt with the submissions that it was wrong and unnecessary to have a law to protect specially the President by prosecutions for defamation. Speaking for myself, the judge below was right to reject arguments which sought to consign the President into the general rank and file of the citizenry. He was not in error when he considered that S .. 69 was reasonably required, in effect, to forestall a possible unpeaceful reaction from the citizens and supporters and to protect the reputation of the first citizen. I do not consider that there can be any who would seriously dispute that side by side with the freedom of speech is the equally very "important public interest in the maintenance of the public character of public men for the proper conduct of public affairs which requires that they be protected from destructive attacks upon their honour and character. 11 see my judgment in SAT A -v- POST NEWSPAPERS LTD and Another (1992/HP/1395 and 1804 and 1993/HP/821 - Unreported). When the public person is also the Head of State, the public interest is even more self-evident. The truth of the matter is that there is nothing in Article 20 which immunizes defamation. In my considered opinion, a law meets the test of being reasonably required if it has as its aim at least one of the interests or purposes listed in Article 20(3). It is also reasonably required upon the test of proportionality when, as the Court of Appeal of Tanzania put it--- "Secondly, the limitation imposed by such law must be no more than reasonably necessary to achieve the legitimate object. This is what is a/so known as the principle of proportionality"--- see PUMBUN -v ATTORNEY-GENERAL (1993)2LRC 31 7. The next argument advanced on appeal was to the effect that the learned judge was wrong when he failed to consider whether S.69 was infact a 11law" within the contemplation of Article 20. Criticism of the judge appears to be quite unfounded because this ground appears not to have been canvassed at the hearing below and was only taken up for the first time before this court. There are indeed some authorities which have suggested that the constitutional or similar exceptions to fundamental rights apply only in relation to restrictions "contained in or done under the authority of any law." Accordingly, it is sometimes necessary for the court to determine whether the impugned legislation conforms to this constitutional requirement before the court embarks upon a consideration of whether the restriction is "reasonably required" or shown not to be \ reasonably justifiable in a democratic society." In the PUMBUN case, the Tanzanian Court of Appeal suggested that one of the essential requirements for the validity of the clawback provisions was that " ........... such a law must be lawful in the sense that it is not arbitrary. 11 The European Court of Human Rights considered the meaning of the word 11law" in the context of permissible restrictions to basic rights in SIL VER AND OTHERS -v- THE UNITED KINGDOM, judgment of25 March 1983, series A. number 61. They expressed the view at page 33 that a norm --- " ......... cannot be regarded as "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able -- if need be with appropriate advice -- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail". Another case of the European Court which can be mentioned is the MALONE CASE, Judgment of 2 August 1984 series A number 82 which suggested that the "law" must be foreseeable and compatible with the rule oflaw. The court suggested that, although it is impossible to have absolute precision in drafting a law, it should nevertheless "indicate the scope .......... and the manner of its exercise with sufficient clarity. 11 These are basically the arguments which learned counsel for the accused ad:vanced, although he cited the ca.i:;e of TOLSTOY decided hy the European Court but whose transcript I have myself not been shown. It was argued that S.69 of the Penal Code was not a valid law because it is overbroad and vague; it does not say what is defamatory and what it insulting; and that it can catch and criminalize even legitimate expression. The offence of criminal libel elaborately dealt with under Sections 191 to 198 of the Penal Code was quoted as an example of the type of clarity required. Curiously enough, no constitutional attack is made of this other criminal libel. I do not myself subscribe to the view that S.69 is overbroad or vague. The general rule of interpretation of the Penal Code is that it "shall be interpreted in accordance with the principles oflegal interpretation obtaining in England." (S.3). The fundamental rule to which I had earlier made reference applies to S.69. Defamation is a well-known subject; even the criminal type of defamation and when it is appropriate to prosecute is well established under the English principles of law. As the learned judge below correctly pointed out, there is a big difference between legitimate criticism or other legitimate expression and the type of expression encompassed by S.69. The section under discussion is a valid law and I would myself not uphold the ground of appeal in this respect. There was a submission alleging a misdirection in the holding that S.69 was reasonably required to forestall a breakdown of public order; the argument being that there is no rational and proximate relationship between S.69 and public order. I consider t his submission to have been expletive and for the reasons earlier stated when considering whether the section is "reasonably required", I would dismiss this argument. The last issue raised under the first ground of appeal was whether S.69 was reasonably justifiable in a democratic society. It was argued that the impact of S.69 was so vast that, in the language of the Zimbabwean case of Re: MUNHUMESO (1994)1 LRC 282, it arbitrarily or excessively took away the freedom of expression. The learned trial judge dealt with this aspect quite extensively since the right of expression is critical in a democracy. I have looked at the arguments below and here on the possible impact of S.69 on the fundamental freedom of expression. It seems to me that a general point can be made about the right of criticism and that is that it can only be up to the evidence heard in a trial if there was inf act legitimate criticism or unwarranted falsehoods and defamatory allegations or vulgar mere insults not containing anything useful to the free flow of ideas and information. As I observed in the SAT A -v- POST NEW SP J\PERS case, freedom of speech and press can not be synonymous with freedom to defame. I have also considered the authorities which were relied upon below, including the case of CASTELLS -v- SPAIN, Judgment of 23 April 1992, series A number 236. I would myself not regard it as authority for the non-criminalization of defamation of the President just because there may be other measures to counteract attacks on him. Mr. Castells, an opposition politician representing a Basque separatist coalition in the senate, published in a weekly magazine an article in which, among other things, he accused the government of failing to investigate murders and attacks by armed groups against Basque citizens and accused government of actually supporting and instigating the attacks. He was convicted by the Spanish Courts for insulting the government and sentenced. The European Court made it clear that governments are required to tolerate an even greater degree of criticism than the politicians. They were talking about an impersonal attack on a democratically elected government and suggested that the "dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms ofits adversaries or the media." The court proposed to narrow down drastically the circumstances in which a government may prohibit criticism of itself to the occasions when it is necessary to protect public order and when the accusations are "devoid of foundation or formulated in bad faith". (see para. 46 of the judgment). In the event, the court ruled that the government of Spain had violated Article 10 of the European Convention (regarding freedom of expression) on the narrow ground that Mr. Castells was prevented at his trial from offering evidence as to the truth of his allegations. The decision was on the facts and merits; the European Court did not declare the -criminal offence as altogether violative of Article 10 of the European Convention but simply suggested to narrow down the circumstances warranting a prosecution. The case is not authority for invalidating the criminal offence i~self Similarly, the case of NEW YORK TIMES -v- SULLIVAN 376 US 254; 11 L. Ed.2d 686 which was quoted below did not suggest or offer complete immunity from suit but simply imposed fetters on a public plaintiff. It is not authority even by way of analogy for immunizing all attacks on a Head of State nor for invalidating a section creating a criminal offence. Mr. Sangwa criticised the learned trial judge for de~cribing ours as a young and fragile democracy instead of simply looking at what would be reasonably justifiable in ·any I democracy. He relied on PATEL - v- ATTORNEY-GENERAL which was a decision of the High Court before the now late Samuel WoulfMagnus, J, who went on to sit in this court before retiring via the county courts in England. The decision in PA TEL ~id not suggest that the court should not have any regard to our kind of democracy. The learned judge expressed himself thus at pages 128-9 --- ,, ............ I am not for a moment suggesting that Zambia is not a democratic society, but, for the purpose of the co11Stitutio11, I think it is necessa,y to adopt the objective test of what is reasonably justifiable, not in a particular democratic society, but in any democratfo society. I accept the argument that some distinction should be made between a developed society and one which is still developin~ but I think one must be able to say that there are certain minima which must be found in any society, developed or otherwise, below which it cannot go and still be entitled to be considered as a democratic society. " (underlining supplied). I had occasion in SATA -v- POST NEWSPAPERS to comment generally upon recourse to international norms and the decisions of the courts in various jurisdictions. I said -- "What is certain is that it does not follow that because there are these similar provisions in international instruments or domestic laws, the courts in the various jurisdictions can have or have had a uniform approach. For one thing, as the examples I have quoted show, the right to free expression and free speech is qualified by exceptions, in some cases more heavily than in others. For another, we are at different stages of development and democratisation and the courts in each country must surely have regard to the social values applicable in their own milieu. n IO Quite clearly, it was not a misdirection to have regard to the conditions and level of democracy in Zambia when testing whether the particular section of the Penal Code was reasonably justifiable in a democratic society. Unlike a provision recently struck down by the majority decision in MULUNDIKA AND OTHERS, Appeal no. 95 of 1995. there is in this instant case no pervasive threat inherent in S.69 which endangers the freedom of expression. The MULUNDIKA case also underlined, in the majority decision, the principle that there are minimum attributes in any democracy. I would myself dismiss the first ground of appeal. The second ground alleged that S.69 contravened Article 23 which reads in the relevant parts --- "Article 23 (1) Subject to clauses (4, (5) antl (7), no law shall make any provision that is discriminatory either of itself or in its effect. ..................................................................................................................... (3) In this Article the expression "discriminatory" means, affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions colour or creed whereby persons of one such ,lescription are subjected to disabilities or restrictions to which persons of another such description are not ma,le subject or are accorded privileges or advantages wliich are not accorded to persons of another such description. " The learned judge held that the section punishing defamation of the President was not discriminatory on any of the grounds listed in the Article which were held to be exhaustive. The argument by lvlr. Simeza was that S.69 conferred privileges on the ground of the President's political opinions when all should be equal before the law. This was an attempt-- which the learned judge below rejected -- to do not so subtle violence to the language of the Article. How can favourable treatment attributable solely to the office of President be described as attributable wholly or mainly to his political opinions? It was also an attempt to reduce to the common ranks the central executive authority and first citizen of the country. The election of any person to the office of President, I would have thought to be self-evident, has legal and constitutional consequences, quite apart from any other result. The constitution itself ordains that he become Head of State and of Government; that the executive power of the state vest in him and that he be endowed with the various matters, powers and functions described in the constitution. I do not see how it can be argued that the President should stand before the law equally with the rest of us when, for example, Article 43 grants him immunity from civil or criminal suit while he occupies that high office. If the constitution itself makes the President not equal to everyone else, how can the accused's arguments be maintainable? The second ground of appeal must fail of its own inanition. For the reasons I have given, I would dismiss the appeals and order that the trials do proceed before the Subordinate Courts. Because an important constitutional challenge to S.69 of the Penal Code has been argued in this court for the first time and the matter is of general importance, I would make no order as to costs. Sakala - Acting Deputy Chief justice. On 23rd January 1996, we heard these two appeals together for convenience only on account that they raised same issues. The two appeals were as a result of a constitutional reference involving two criminal cases emanating from the Subordinate Court to the High Court. In appeal number 87 the 1st and 2nd appellants are appealing against a High Court Judgment (Chitengi J) holding that the provisions of Section 69 of the Penal Code Cap 146 of the Laws of the Zambia are not in conflict with the provisions relating to fundamental freedoms and rights guaranteed under articles 20 and 23 of the Constitution of Zambia and thereby remitting the Criminal case to the Magistrate Court to deal with the appellants as accused persons according to the law. In appeal number 107 the 3rd and 4th appellants are also appealing against a Judgment of (Mambilima J) holding that the result of the judgment in appeal number 87 of 1995, affected the appellants' case as well and also remitting that case to the Magistrate for the trial to commence. The brief facts in both appeals are that sometime in the month of March and July, 1994 the appellants allegedly published in a newspaper called "The Post" defamatory or insulting matters concerning the President with intent to bring him into hatred, ridicule or contempt. Subsequent to the publications the appellants were arrested and charged with the offence of defamation of the President contrary to Section 69 of the Penal Code and appeared before the Magistrate's court at Lusaka. It was the arrests and the impending prosecutions that prompted the Constitutional reference of both Criminal cases to the High Court for determination of whether Section 69 of the Penal Code was not in conflict with articles 20 and 23 of the Constitution. In both cases the High Court held against the appellants. The appellants challenged the constitutionality of Section 69 of the Penal Code hereinafter referred to as Section 69 creating an offence of defamation of the President. The challenge is in relation to the fundamental rights and freedoms as guaranteed under articles 20 and 23 of the Constitution. To understand the nature of the challenge clearly it is necessary, at the outset, to refer to the provisions leading to the appeal. Section 69 reads as follows:- "Any person who with intent to bring the President into hatred, ridicule or contempt, publishes any defamatory or insulting 1m1.ll~r, whether by v.:riting, 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 3 years. 11 The relevant provisions of article 20 of the constitution read as follows: "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 or persons, ......................................... .. (2) ........................................................................................... .. (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 interest of defence, public safety, public order, public morality or public health; (b) • • • • • • • • • • • • • • • • • • • • • ♦ • • • • • • • • • • • • ' • • • • , ' • • • • • • • • • • • • • ♦ • • • • ' • • • • • • • • • • • • • • • • • • • • • • • • • • • 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." The relevant provisions of article 23 (3) read as follows:- "23. (1) Subject to clauses (4), (5) and (7), no law shall· make any provision that is discriminatory either of itself or in its effect. (2) ..................................... ....................................................... . (3) In this article the expression udiscriminatory" mean, affording different treatment to different persons attributed, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or. are accorded privileges or advantages which are not accorded to persons of another such description." The learned High Court Judge in appeal No. 87, whose judgment was upheld with approval in appeal No. 107 of 1995 reviewed the detailed submissions and the numerous authorities cited. In his lengthy Judgment he noted a number of issues not in dispute, among them: that freedom of expression was not absolute but subject to derogations; that the nppellonts bear the burden to prove that theif fumlamental freedoms have been contravened; and that the provisions hindering their fundamental freedoms are not justifiable in a democratic society. The learned Judge also noted that among the controversies in the appeal were: whether section 69 fell within the provisions of clause 3 of article 20 of the constitution; and as to who bears the burden of proof. After a long discussion of the authorities and the law the teamed Judge, citing with approval the decision in Patel Vs Attorney-General (1) and a passage in Basu: Commentary on the Constitution of India 4th Ed. Vol. 1.29., disapproved the presumption of constitutionality of law and held that the burden of proving that Section 69 fell within the permitted derogations under article 20{3) is on the State. On the question of whether the impugned section 69 was reasonably required, the court found that it was common cause that the test to be applied is an objective one. Dealing with the specific grounds on the constitutionality of section 69 the learned Judge observed that he appellants had been arrested for having published some article in the paper about the President. The court found that on a balance of probabilities the appellants had proved that they are likely to be hindered in their enjoyment of their freedom of expression. The learned Judge made references to cited cases, to the European Commission of Human Rights, and to the International Convenant on Civil and Political Rights and accepted that legitimate critici~m is acceptable in a democratic society and held that when considering whether the provisions impugned are reasonably justifiable in a democtatic society the test is objective and found that the appellants had failed to satisfy the court on a balance of probabilities that Section 69 is not reasonably justifiable in a democratic State. The learned Judge further found that Section 69 does not deprive any citizen the right to legitimately criticise the President or Government. On whether Section 69 is reasonably required in a democratic society within article 20 (3), the court acknowledged that this was the most critical issue of all the issues raised in the case. But after declining to define "democratic society", the learned Judge accepted that Zambia is a democratic society. The learned Judge refused to accept submissions that suggested that it was not in the public interest to protect the President in the manner provided by Section 69, pointing out that the submissions begged the question. The learned Judge accepted that in determining whether Section 69 is reasonably required in the Zambian society the obtaining conditions must be taken into account. The learned Judge held that in the circumstances of Zambia, to allow people , journalists or ordinary persons to publish of the President anything they wished however defamatory will have adverse effect on public order and in turn against public interest. The learned Judge then held that section 69 is reasonably required in Zambia to forestall a breakdown of public order. The learned Judge observed that Section 69 is not a draconian measure. On the issue of whether Section 69 conflicts with article 23 in that it is discriminatory in its effect, the learned Judge accepted that the discrimination envisaged under clause 3 of article 23 is confined to the matters enumerated therein and that clause 3 was exhaustive and not illustrative. The learned Judge held that Section 69 of the Penal Code was not in conflict with clause 3 of article 23 of the Constitution. The appellants have appealed against the whole Judgment. On behalf of the appellants Mr. Sangwa who had earlier filed amended written heads of argument argued four grounds of appeal centered on Section 69 as violating article 20 of the Constitution while Mr. Simeza argued the fifth ground in relation to Section 69 as violating article 23. I propose to deal with the five grounds in the order in which they were filed and argued. The first ground argued by Mr. Sangwa was that the court below misdirected itself on a point of law in holding that Section 69 was within the pennitted derogations provided for under article 20(3) that it is reasonably required to forestall breakdown of public order. :Mr. Sangwa raised two issues when arguing this ground. The first issue was that Section 69 does not itself say that it is provided for purposes of ensuring public order in Zambia. Counsel contended that the court drew its own inference as to the objects of Section 69 and in so doing assumed the role of the legislature and inferred a purpose to section 69 on behalf of the legislature which purpose was not supported by historical documents available. Counsel specifically drew the attention of the court to the parliamentary debates of 1964 when the Penal Code Amendment Bill, that \ntroduced the new offence of defamation of the President, was being debated. Counsel argued that it was not indicated in the debates that Section 69 was intended to protect public order. Mr. Sangwa also contended that it was erroneous on the part of the court to find that Section 69 was ' passed in order to safeguard breakdown of public order. He submitted that Section 69 was intended only to safeguard the dignity of the State. The second issue raised under ground one was that while the court correctly held as in the case of Patel Vs Attorney General ( 1) that the respondent had the burden of proving that Section 69 was within the permitted derogations as stipulated in article 20 (3); the court failed to address the issue of whether the respondent had discharged that burden so as to compel any reasonably competent court to find that Section 69 was reasonably required in the interests of public order. Mr. Sangwa submitted that the court found that Section 69 fell within article 20(3) in the absence of any evidence supporting that finding. The reply to ground one by Mr. Kinariwala on behalf of the State was that the important word in article 20 is "hinder. Mr. Kinariwala argued that no evidence was adduced in the court below to show in what way the freedom guaranteed by article 20 had been hindered or is likely to be hindered or continues to be hindered. He contended that the trial had not started and no evidence had been adduced to show in which manner the appellant's rights had been hindered. Mr. Kinariwala pointed out that an examination of the Penal Code shows that Section 69 comes under Part II of the offences against public order. Mr. Kinariwala submitted that this was an indication that Section 69 had been enacted with a view of maintenance of public order. On burden of proving that Section 69 fell within the pennitted derogations under article 20 (3) Mr. Kinariwala agreed with the Court's finding that it is on the State. Counsel, however, contended that under article 20 the appellants can make any legitimate criticism but that it does not give them a license to defame or ridicule the President, submitting that Section 69 protects the President from defamatory matters and does not infringe on freedoms under article 20. Mr. Kinariwala further submitted that Section 69 is reasonably required in the public interest and is reasonably justified in a democratic society contending that it does not prohibit the appellant to write anything about the President so long it is not defamatory or insulting. Mr. Kinariwala pointed out that article 11 is clear on the enjoyment of the rights with emphasis on public interest. Counsel contended that the President is the highest position in the land and should enjoy the highest protection. I have very carefully considered the arguments and the submissions on ground one. In my view ground one raises two questions for determination. First, whether Section 69 is reasonably required to forestall breakdown on public order as a permitted derogation guaranteed under article 20 (3) of the constitution. Second, who has the burden of proving that Section 69 is reasonably required in the interest of public order. The gist of Mr. Sangwa's submissions on the first question is that Section 69 is not a permitted derogation because it does not say what its purpose or objects are and that the learned Judge misdirected himself by inferring the objects or purposes of Section 69 which objects or purposes are not supported by the Parliamentary debates. It was Mr. Sangwa's position that Section 69 was passed to safeguard the dignity of the State and not to safeguard the breakdown of public order. On the other hand Mr. Kinariwala argued that the appellant's rights had not been hindered and there was no evidence that they are likely to be hindered. The contention of Mr. Kinariwala was that since Section 69 falls under Part II of the Penal Code which deals with offences against public order, that in itself is an indication that Section 69 had been enacted as an offence against public order. The learned Judge found that Section 69 is reasonably required to forestall breakdown of public order and that it was not a draconian measure but justified in the context of the Zambian society. I have addressed my mind to the first question raised in ground one. I have no difficult in accepting that Section 69 is a law and that the appellants were arrested and that their impending prosecution is under the authority of that law. To this extent Section 69 is within the first requirement of clause 3 article 20. The question whether Section 69 is reasonably required depends on whether it meets any of the interests or purposes set out under clause 3 (a) namely; public safety, public order, public morality or public health. The section prohibits publication of defamatory or insulting matter with intent to bring the President into hatred, ridicule or contempt and nothing more. Reasons for the prohibition can only be inferred but must meet the objectives of the constitution. We are here dealing with a section of the Penal Code and the Penal Code as a whole was enacted with the general object of establishing a code of criminal law. In the process of enacting the code several offences were codified and classified. Significantly Section 69 is classified under offences against public order. I agree with the learned Judge that in the circumstances of Zambia to publish of the President anything defamatory will have adverse effect on public order and therefore against public interest, matters within the permitted derogations under article 20 (3) (a). We were referred to the Parliamentary Debates in support of an argument that the objects of Section 69 as inferred by the court are not supported by history. But a close examination of the debates reveals that when the then Attorney-General was debating the Bill introducing the offence of defamation of the President he had this to say:- " ..... _ .... This is a measure designed to secure not alone the safety of the State but, also, its dignity .. great care was taken to ensure that the proposed amendments do not only apply to maintaining law and order .... 11 In my view, I am more than satisfied that Section 69 was placed among offences against public order because one of its objects was to forestall public order. In my view t?e objects of a law or an enactment are not generally spelt out in a section and indeed the purposes of creating an offence can not be spelt out in a section of an enactment. I find therefore that the learned Judge correctly interpreted the purposes of Section 69 by bearing in mind the circumstances obtaining in Zambia and holding that Section 69 is within the permitted derogations. On \uestion of burden of proof it was common cause, following the case of Patel Vs Attorney-General (1), that the State had the burden of proving that Section 69 fell within the permitted derogations. Mr. Sangwa's complaint is that the court failed to address the issue of whether the State had discharged that burden to justify the finding that Section 69 was reasonably required in the interest of public order. Mr. Sangwa's contention was that the State adduced no evidence to show that Section 69 was reasonably required in the interest of public order submitting that the causal connection between Section 69 and the maintenance of public order had not been established. I take note that the constitutional reference in both appeals was argued before the learned Judge without recourse to any oral or affidavit evidence. The reference proceeded on legal arguments and submissions only. In the Patel case (1) on the other hand the State adduced evidence and on that evidence the court was satisfied that the State had discharged its burden of proving that the particular law was reasonably required in the specified interest. In the present case the court accepted that it was common ground that the appellants had been arrested for having published some article in the newspaper and that they are likely to be hindered in their enjoyment of the freedom of expression. The contention of Mr. Kinariwala is that under article 20 the appellants can make any criticism but that it must be legitimate because article 20 does not give a license to the appellants to defame the President. In the present case the appellants were arrested for an article already published. This is common cause. I find no need for any evidence at this stage bearing in mind that the question of whether the article complained of is defamatory or insulting of the President cannot be determined by this court. But a critical examination of Section 69 in my view does not in any way suggest prohibition of writing anything about the President. The appellants are free to criticise the President but they are not free to defame him. The section does not deny the appellants the enjoyment of their rights under article 20 in any way. It simply says do not defame the President. Evidence or no evidence, I am satisfied on a proper consideration of Section 69 that it is reasonably required in the interest of the public. This appeal based on ground one cannot succeed. The second ground was that the court below failed to consider whether section 69 was a law within the meaning of article 20 (3). I have alluded· to this ground in dealing with ground one. But the submissions on this ground were that the import of article 20(3) is that any derogation of freedoms guaranteed by the constitution must be prescribed by law; and the law must be clear, and unambiguous in order to promote the rule of law. It was argued that an ambiguous law does not show which conduct is criminal, and that section 69 does not qualify to be a law within the meaning of article 20 (3) because it is overbroad and vague. It was pointed out that the words "defamatory or insulting" matter in Section 69 require careful examination and that they are not defined in the Section in contrast to Section 191. Counsel submitted that the words as they stand are vague and the section is invalid as law. Mr. Sangwa further argued that because the section is overbroad even permissible legitimate expressions would be deemed a crime. Counsel contended that the President is not above politics and that politics by its nature is a game of one trying to out do the other and that therefore free speech is imperative and life blood of any . democracy and yet section 69 criminalises even legitimate expressions. Counsel urged the court to hold that on the ground of vagueness and overbreath section 69 of the Penal Code be declared unconstitutional. In support of the submissions on ground two Mr. Sangwa cited the case of Torstov Vs UK (2) and thecase of Coates & Others Vs City of Cincinnati (3). Mr. Kinariwala contended that Section 69 is not vague but agreed that the words "defamatory and insulting" matter are important and submitted that Section 191 - 198 chapter 18 of the Penal Code define the words and therefore Section 69 cannot be described to be vague or overbroad. As I have said part of the arguments under this ground have been answered in ground one. In dealing with this ground I have been mindful to avoid delving into matters of a trial court. But at the expense of repetition I must again stress that what amounts to defamation or insulting is a matter of interpretation of the article complained of. We cannot be invited to do that at this stage. I have read the judgment of the learned judge more than once. The issue of vagueness and overbreath of section 69 seems to me not to have been raised before the learned judge. Be that as it may, I find nothing vague or overbroad about section 69. In my view there is no magic formula in the words "defamatory" or "insulting" as used in section 69. They are ordinary English words. In its ordinary dictionary meaning defamatory means "evil" while insulting means noffending. Above all the Penal Code itself provides in section 192 the definition of defamatory matter as matter likely to injure the reputation of any person. I do not agree that legitimate expressions or criticisms are criminalised by section 69. For my part I find nothing unconstitutional in section 69. This ground of appeal also fails. The third ground was that the court erred on a point of law in holding that section 69 and the limitations it imposed were reasonably required to forestall breakdown of public order and that the relationship between section 69 and public order is not rational and not proximate. Citing the case of Patel Vs Attorney-General (l). Mr. Sangwa submitted that there are many factors that may undennine public order but that publication of any defamatory or insulting words with intent to bring the President into hatred, ridicule or contempt does not sufficiently proximate public order to warrant section 69 to be taken as reasonably required in the interests of public order. Mr. Kinariwala countered ground three by repeat~ng his submission that the relationship is in the fact that section 69 appears under offence~gainst public order. , The issue as I see it is not one of relationship but whether section 69 a is permitted derogation within article 20(3). The learned judge found that it was. For the reasons already discussed in ground two this ground cannot also succeed. The fourth ground was that the learnecl' judge misdirected himself on a point of law in finding that section 69 was justifiable in a democratic sodety. Three issues were argued under this ground namely: whether the hindrance imposed by section 69 was reasonably justifiable in a democratic society; What is the meaning and impact of section 69 on freedom of expression and whether the effect is reasonably justifiable in a democratic society and What is a democratic society? Mr. Sangwa argued that the learned judge failed to address the issue of whether the hindrance imposed by Section 69 was reasonably justifiable in a democratic society although he found that it was reasonably required in he interest of public order pointing out that any permitted derogation must be reasonably justifiable in a democratic society. Mr. Sangwa cited the case of Munhumeso & Others (4) to support his submissions. Counsel further argued that the court foiled to analyse the meaning and impacl of section 69 on freedom of expression and determine whether its effect was reasonably justifiable in a democratic society. He also contended that the court failed to define what a democratic society is and yet proceeded to qualify democracy in Zambia as young and fragile which qualifications are not set out in article 20 of the constitution. Counsel submitted that in determining what is reasonably justifiable in a democratic society an objective test has to be used as was the case in Patel Vs Attorney-General which also cited the Yates Vs US case. He submitted that the limitation imposed by section 69 must be reasonably justifiable not only in Zambia as a democratic society but in any democratic society. Mr. Sangwa concluded his submissions by contending that to criminalize the publication of any matter which defames the President cannot be reasonably justifiable in a democratic society. A careful reading of the judgment of the learned judge discloses that he devoted six pages in dealing with the question of whether section 69 is reasonably justifiable in a democratic society. The learned judge noted that it cannot be deni.ed that freedom of expression, press and criticism of the government and public officials including the President himself is very essential in a democratic society. He further noted that the Constitution underscores the importance of freedom of expression and press by enshrining it in article 20 that the provisions in the Penal Code which limit freedom of expression and press accept criticism and that section 69 does not prohibit anybody from speaking or publishing anything about the President. The learned judge concluded the discussion with the following passage:- 11Bearing in mind that when considering whether the provisions impugned are reasonably justifiable in a democratic society the test is objective, I find that the applicants have failed to satisfy me on a balance of probabilities that section 69 is not reasonably justifiable in a democratic state. Section 69 does not deprive any citizen the right to legitimately criticise the President or the Government." I am satisfied that the learned judge addressed the issue of the hindrance imposed by section 69 and correctly held that it was reasonably justifiable in a democratic society. To the extent that the learned judge found that Section 69 does not deprive any citizen the right to legitimately criticise the President or the Government and that there can be no unbridled freedom of expression in any democratic society, I am satisfied that the learned judge analysed the meaning and impact of section 69 on freedom of expression as guaranteed under article 20 and correctly determined that its effect was reasonably justifiable in a democratic society. The learned judge properly rejected the contention that it is not in the public interest to protect the President in the manner section 69 does. Mr. Sangwa lastly complained that the court did not define what a democratic society is but instead proceeded to qualify democracy in Zambia. I agree that the learned judge decLined to deal with the specific issues of the definition of democracy but then when discussing whether Section 69 was reasonably required in a democratic society the court unwittingly defined the term democratic society. Thus he said: "I do not consider section 69 as a draconian measure. it is justified in the context of our society and in my considered judgment it is not out of proportion to the legitimate aim pursued under sub article 3 of article 20 of the constitution. I have carefully considered section 69 and the other provisions in the law which limit freedom of expression to find if they are intended to stifle opinion. My conclusion after this consideration is that the current of the legislation appears to be that the function of the authorities is only to punish libel but not to guide the course of opinion and stifle legitimate criticism. As I see it, the limitations that section 69 places on our freedom of expression or freedom of the press is no more than the price we have to pay for belonging to our society." The facts of the case in my view did not call for definition of a democratic society. However, the question of what is a "democratic society" has been ably settled by a majority judgment with which I totally agree in the case of Christine Muluridika & Others (7) appeal No. 95 of 1995 when at page 12 Ngulube C. J. delivering the majority judgment had this to say:- "For an attempt at the definition of what is a "democratic society", reference should be made to Patel Vs The Attorney-General (1968} ZR 99 at pages 128 to 129. We begin from the premise that there are certain minimum attributes in any democracy, including the availability of a Government which reflects the will if the majority of the people expressed at periodic and genuine elections, the power of the state should reside in the people and where this is exercised on their behalf: the mandatory is accountable. Apart from the free and informed consent and maximum participation of the governed, it is also common to expect that the people have and actually enjoy basic righls and freedoms available to the majority as well as to any minority. Although there are many shades of democracy and an adequate definition elusive-and certainly not necessary for our present purposes---the courts have long recognised the importance of freedom of speech and assembly in a democratic society. For example, the European Court of Human Rights has placed high value on the freedom of expression. We read at paragraph 49 of the judgment of 7th December 1976 series A No. 24, HANDYSIDE VS UK-- 11The Court's supervisory functions oblige it to pay the utmost attention to the principles characterising a "democratic society". Freedom of expression constitutes one of the essential foundations for its progress and for the development of every man .... it is applicable not only to information or ideas that favourably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb the state or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no "democratic society." It is to be noted that the learned judge made reference to the cases of Patel and Handyside in his judgment . In my view to decide the issues before him the learned judge correctly declined to define a "democratic society11 but he infact addressed it. In the case of Re-Munhumeso & O thers (1994) 1 LRC cited in the Mulundika case the Supreme Court of Zimbabwe had the occasion to decide on the constitutionality of section 6 of their Law and Order (Maintenance) Act. In considering whether such a law was reasonably justifiable in a democratic society, they said, at page 293 :- 11What is reasonably justifiable in a democratic society is an illusive concept, one which cannot be precisely defined by the courts. There is no legal yardstick save that the quality of reasonableness of the provision under challenge is to be judged according to whether it arbitrarily or excessively invades the enjoyment of a constitutionally guaranteed right." The passage was cited with approval in the ~ajority judgment in M ulundika case (7). I fully endorse the passage. Section 69 does not arbitrarily qr excessively invade the enjoyment of the freedom of expression or press as guaranteed under article 20 of the Constitution. It is therefore reasonably justifiable in a democratic society. Ground four of the appeal also fails. ("rround five argued by Mr. Simeza was that the court below erred in lnw by holding that section 69 was discriminatory in its effect and that it did not contravene article 23 of the Constitution. The gist of the submissions on this ground was that article 23 (1) of the Constitution prohibits the existence or enactment of any legislation which has the effect of discriminating against other citizens. Mr. Simeza contended that although the court held that the discrimination envisage by article 23 (3) is only in relation to the matters enumerated therein and that the article was exhaustive and illustrative, the court should have gone further to determine whether section 69 was discriminatory. He submitted that section 69 is caught by the definition of article 23 as it accords privileges to the President not accorded to others and does not pass the test of article 23 (3) and therefore unconstitutional. Mr. Sirneza referred the court to the case of Guzana Vs Council of State of the Repu blic of Chis hei (5) and the case of S Vs Ggobo and Others (6) and pointed out that both cases held that it was unconstitutional to give special privileges to the President. It was further the contention of Mr. Simeza that even article 43 which provides for the protection of the President in legal proceedings does not justify the existence of section 69. In his reply to submissions on ground five Mr. Kinariwala referred the court to section 7 of the Constitution of Zambia which vests prerogatives and privileges into the President and submitted that section 69 confers a privilege on the President by ensuring that he is not defamed. Mr. Kinariwala further submitted that the discrimination complained about is not he discrimination envisaged by article 23 and submitted that section 69 is not in • conflict with article 23. On the issues of discrimination Mr. Kinariwala informed the court that he was relying on the recent decision by the majority in the case of MuJundika & Othe1·s (7). The learned judge accepted that the discrimination envisaged by article 23 (3) relates to matters stated therein and held that section 69 is not in conflict with article 23 of the Constitution. I take note that the judgment in the majority landmark decision in M ulu ndika case was not available at the time of the learned judge's decision, the subject of the present appeal. But the judgment was available to all the parties when this appeal was being argued before us. In the M ulundika case one of the arguments was that the exemption granted to certain government officials, including the Head of State and the lv.finisters, from not obtaining Police permits before holding any meetings was discriminatory, contrary to the Constitutional provisions in article 23. Ngulube C. J. delivering the majority judgment had this to say:- "The learned trial judge was on firm ground when he held that the provisions did not fall within the categories listed in the constitution. This is self -evident." This was the position taken by the learned judge in the present case. The discrimination envisaged by article 23 (3) relates to race, tribe, sex, place of origin, marital status, political opinions, colour or creed. The article is exhaustive. I find no reason to differ with the learned judge's reasoning and that of the majority decision in Mulundika case. The fifth ground of appeal also fails. In the net result the appeal is dismissed. On account of the ConstitutionaJ issues of public interest raised I make no order as to costs. Chaila J. S. The appellants who were dissatisfied with the judgments of the High Court (Chitengi J and Mambilima J.) have appealed to this court. The appellants were facing a criminal charge of defaming the President. The argument~ are mainly based on the judgment of Chitengi J. The charge is against section 69 of the Penal Code. When they appeared before the Subordinate Court they raised a constitutional issue concerning the offence and the matter was referred to the High Court. The High Court detennined the matter and ruled that section 69 of the Penal Code was not contrary to the provisions of the Constitution of Zambia. Messrs Sangwa and Simeza, counsel for the appellants have submitted detailed heads of arguments. In addition the Advocates .advanced with great force oral arguments in support of the appeUants case. The appellants have advanced five grounds of appeal. I will deal with each ground in the order which they were argued. The first ground is that: the court below misdirected itself on a point of law in holding that section 69 of the Penal Code was within the permitted derogation provided for under Article 20(3) in that it is reasonably required to forestatl break down of public order. Mr. Sangwa has argued that section 69 of the Penal Code does not itself say that it was enacted for purposes of ensuring public order in Zambia. Mr. Sangwa said that the court below assumed the role of the legislature and inferred a purpose to section 69. He argued that historically the documents available did not say that section 69 was introduced for the purpose of maintaining public order. He has drawn the court1s attention to parliamentary debates on the Penal Code amendment bill of 1964. I do not intend to quote the debates but it is sufficient to state that I have read the debates. Mr. Sangwa has argued further that the court correctly held that the respondent had a burden of proving as held in Patel vs The Attorney-General ( J that section 69 of the Penal Code is within the permitted legislation stipulated under Article 20(3) of the Constitution of Zambia. He has argued that the learned judge failed to address the issue whether the respondent had indeed discharged the burden so as to compel any reasonable competent court to find that section 69 of the Pena] Code was reasonably required in the interest of public order. Mr. Sangwa referred the court to the following cases:- 1. 2. 3 . 4. 5. Coates & Others vs City of Cinsinnati [ J Patel vs The Attorney-General [ ] Zimbabwe's case Yates vs US [ J Tonsoi vs US [ ] Mr. Sangwa argued further that the court below failed to consider whether section 69 of the Penal Code was a law withln the meaning of Article 20(3) of the Constitution. He has argued that the section is too broad and vague. He referred the court to section 199 of the Penal Code. That section provides details whereas section 69 is vague and is .. overbroad. He argued that the Constitution of Zambia guarantees freedom of expression and because section 69 of the Penal Code is overbroad anything in writing on the president would be considered as a crime. He wondered why it should be a crime for talking about a political person. He further argued that the relationship between public order and section 69 is not rational and proximate. He argued that that law is not reasonably justified in democratic society. He urged the court to follow the decision in the Zimbabwe Constitutional case. He complained that the lower court did not interpret section 69 of the Penal Code 69 of the Penal Code in order to detennine·the impact of that legislation. The lower court found that the law was necessary but no impact was considered. Counsel further argued that the law was vague and since it was vague it led to arbitrariness. He maintained that section 69 of the Penal Code was not reasonably justifiable in a democratic society. He maintained that the executive Head of State should be subjected to serious criticisms. For the State Mr. Kinariwala, Principal State Advocate, argued that the operative word in Article 20 of the Constitution is '1hindered". According to Mr. Kinariwala's argument is that there is nothing to show that the appellants had been hindered in their enjoyment of their right. The trial had not commenced and the appellants had not given any evidence. Taking them to court is not enough. He argued that section 69 of the Penal Code comes under Part v vii of the Penal Code. That part deals with the offences against public order. It follows therefore that section 69 was enacted with a view of public order. The inclusion of the section under Part v vii was sufficient to show that it was enacted for the purpose of maintaining public order. He argued further that the learned judge exhaustively dealt with the question of public order in his judgment. The learned Principal state Advocate further argued lhal in tleciding the case the learned judge followed the decision in the Patel vs The Attorn ey-Genernl and put the burden of proof on Llle S lale. The Patel1s case will be considered later in my judgment. l\,fr. Kinariwala has further argued that the appellants can raise any crit~cisms against the president or government of the day so long as they are acceptable. Article 20 of the Constitution does not allow any person to be defamed whether it is the president or anybody else. He argued that the appellants would like to be free to write anything. He maintained that under Article 20 a person can enjoy his rights subject to rights of other people. The president is a person and he is entitled to his rights i.e. not to be defamed. He further argued that the learned judge properly directed himself when he came to the conclusion that section 69 does not infringe Article 20. Article 20 is required both in the interest of public order and justifiable in our law. Section 69 allow the appellants to write anything about the president so long as it is not defaming him. He further submitted that Article 11 of the Constitution provides that enjoyment of rights of individuals will not override public interest. He has argued that it is in the public interest that the person in whose hands are vested executive powers of the State should enjoy high reputation. Zambia is a democratic society. Section 69 is reasonable and justifiable. Mr. Kinariwala submitted further on the case of Yates vs US already referred to that this case does not justify defamation of the president and did not support the appellants' case. He maintained that the learned judge had properly directed his mind and had come to the correct decision. Mr. Kinariwala drew the court's attention to the standard of some journalists. The learned judge took into account that Zambia was experiencing mult-party politics after 17 years of one party rule and were over-zealous. Mr. Kinariwala submitted that journalists would write anything and that the learned judge took into account all this in making his decision. On the vagueness of section 69 l¼r. Kinariwala submitted that the section was not vague. He referred the court to section 198 of the Penal Code which section contains guide lines and one can get those guide lines from Chapter 18 in the Penal Code when dealing with section 69. He contended that section 69 was not vague. He further submitted that section 69 and public order are rational and proximate. Section 69 is an offence against public order. Mr. Sangwa in reply stated that Mr. Kinariwala's reference to Chapter 18 in the Penal Code on defamation clearly supported his argument that the law was vague. He maintained that the law must be clear and not ambiguous. He further stated that the appellants were not seeking freedom to insult the president. Mr. Sangwa on Article 11 of the Constitution was of the view that the article was unconstitutional. I would now refer to section 69 of the Penal Code which reads:- 11 Any person who, intent to bring the Presiden\into hatred, ridicule or contempt, publishes any defamatory or insulting matter, whether by writing, printing, 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." The appellants have complained that the leaned judge failed to consider whether section 69 of the Penal Code was a law within the meaning of Article 20(3). They have further complained that section 69 does not say that it was provided for the purpose of ensuring public order in Zambia. They have argued that the court instead assumed the role of legislature and inferred a purpose to section 69. They have argued that historical documents available do not say it was introduced for the purpose to maintain public order. Article 20(3) of the Constitution provides:- "(3) Nothing contained in or done under'the authority or 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) (b) that is reasonably required in the interest of defence, public safety, public order, public morality or public health; or 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 or information received in confidence, maintaining the authority and independence of 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 upon 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 ~ustifiable in a democratic society. i I When the matter come up in the lower court the question of section 69 not being a law was not raise and was not discussed by the learned judge. The matter has been raised for the first time in this court. It is therefore unfair to accuse the learned judge of not having considered whether or not section 69 was a law within Article 20 of the Constitution. This matter in my view should not be raised in this court. However, in order to avoid any doubts on the matter I will consider the matter. Section 69 of the Penal Code was introduced by the Penal Code amendment Act No. 6 of 1965. The Act was assented to on 11th January, 196 5 and became part of Chapter 7 of the Penal Code. This chapter deals with offences against public order. The interpretation and General Provisions Act Chapter 2 of the laws of Zambia defines written law as follows:- 'written law means an Act, and applied Act, an ordinance and statutory instrument.' In the case of Patel vs The Attorney-General f ] Magnus J. decided that. statutory instrument was part of the law. The same decision was reached by Blagden C. J. in the Kachasu case [ ]. Section 71(1) of the Constitution applicable at that time provided that subject to the provisions of this Constitution the legislative power of Parliament shall be exercised by the bills passed by National Assembly and assented to by the President. Section 71(7) reads: 'When a bill that has been duly passed is assented to in accordance with the provisions of this Constitution it shall become law and the President shall thereupon cause it to be published in the Gazette as a law.' Section 71 (9) reads:- 'All laws made by Parliament shall be styled 'Act' and the words of enactment shall be 'enacted by the Parliament of Zambia.' Act No. 6 of 1965 which introduced defamation of the President came into force in January, 1965 and it became in that year law. The arguments by the appellants' counsel that the learned judge misdirected himself in not considering whether or not section 69 of the Penal Code is law is not tenable and cannot therefore succeed. On section 69 not being law Mr. Sangwa submitted that the limitations on the enjoyments of rights and freedoms guaranteed must not be depended on the whims and caprices of those with power, but on the express provision of the law. For that objective to be realised the law must be clear, accessible and fair. According to him section 69 of the Penal Code does not meet these criteria. The section is both overbroad and vague. In the case of He cited the case of Coates & Others vs City of Cinsinnati [ Pumbun v Attorney-General & another (1993) 2 LRC 317, the Court of Appeal of Tanzania had occasion to consider the principle that any discretion must be subject to adequate guidelines and effective control. It was held:- ]. " ... a law which seeks to limit or derogate from the basic right of the individual on grounds of public interest will be saved by Article 30(2) of the Constitution only if it satisfies two essential requirements. First, such a law must be lawful in the sense that it is not arbitrary. It should make adequate safeguards against arbitrary decisions, and provide effective controls against abuse by f hose in authority when using the law. Secondly, the limitation imposed by such law must not be more than is reasonably necessary to achieve the legitimate object. This is what is also known as the principle of proportionality. The principle requires that such law must not be drafted too widely so as to net everyone including even the untargeted members of society. If the law which infrin~es a basic right does not meet both requirements, such law is not saved by article 30(2) of the Constitution, it is null and void. And any law that seeks to limit fundamental rights of the individual must be construed strictly to make sure that it conforms with these requirements, otherwise the guaranteed rights under the constitution may easily be rendered meaningless by the derogative or clawback clauses of that very same constitution." Mr. Sangwa's argument in this case is that section 69 is too broad and too vague. He has complained that it does not have sufficient guide Jines. I have considered the authorities and the section in question. That section to me is quite precise and clear and does not contain any vague expressions. The words are simple and unambiguous. The argument that the words are too vague and overbroad cannot therefore succeed. I now turn to the second leg of ground one which is 'that the learned judge misdirected himself in holding that section 69 of the Penal Code was within the permitted regulation provided for under Article 20(3) in that it is reasonably required to forestall break down of public order.' Counsel for the appellants has maintained that section 69 of the Penal Code does not itself say it is provided for the purpose of public order in Zambia. :Mr. Kinariwala for the State has argued that the intention of the legislature was to create that offence as an offence against public order and that the intention was clearly spelt out by putting the new offence under the offences against public order Chapter VII. Counsel for the appellants has supported his argument by producliun of the Parliamentary debates on the matter. The debates did show that hefore section 69 was passed there was some hot debate. Members of the opposition objected to the bill but at the end of the day the bill was passed and section 69 of the Penal Code became law and became part of Chapter VII of the Penal Code. Under Chapter VII there are offences against public order. This includes treason, treason felony, promoting tribal war, prohibited publications, offences in respect of seditious and defamation against the president. The intention of the it was intended to include defamation against the president legislation is quite clear; among offences against public order. The person holding the position of the president of the country needs to enjoy high reputation and respect. The learned judge was therefore on a firm ground when he concluded that the law was within Article 20(3). I now come to the third part of ground one. Counsel for the appellants argued that the respondent had the burden of proving that section 69 of the Penal Code was within the permitted derogation but the court failed to address the issue. The respondent did not discharge that burden so as to appeal to any reasonable court to find that section 69 of the Penal Code was required in the interest of public order. Counsel referred to Article 20(3) which reads:- "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 provisions." No evidence was adduced by the respondent to show that section 69 was reasonably required in the interest of public order, casual connection between section 69 and maintenance of public order. In approaching this issue the learned judge reviewed J~e authorities presented to him by both counsel; he found it very difficult to accept the appellants' counsel on public interest to protect the president in a manner section 69 does, he went on to conclude that it was in the public interest to have such a law. Mr. Kinariwala argued that the legislature had found it fit to make offences of defaming the president as part of the offences against public order and that thls law was reasonably required to protect the Head of State who should enjoy hlgh reputation at all times. If reputation is damaged or lowered then it will affect the country and that will be against public interest. The offence therefore created by Section 69 is proximate to public order since it protects the interest of the state. There is. no dispute that the offence was placed in a group of offences against the public order. There is no doubt that the Head of State needs to enjoy high reputation. The Head of State is placed by the Constitution of Zambia as a very special position. He performs various functions which other citizens of Zambia do not perform. The legislature created an offence to protect his position and placed the offence in the group of the offences against public order. It is presumed that the legislature in doing so acted constitutionally. The appellants' counsel have argued that the legislature did not intend to do so. The Penal Code speaks for itself . The offence is among those offences against public order. The learned judge did not in my considered opinion err in his conclusion. The offence is one of the offences against public order. The interest of State and the individual's interest were fully discussed by Blagden C. J . in the Kachasu case. In the Kachasu case the fonner C. J. Blagden took a position that the applicant's undoubted right to enjoy freedom of conscience, and all the other rights guaranteed by Chapter ID of the Constitution, depend for their very existence and implementation upon civil society - that is the ordered society establisheci by the Constitution. The continuance of that society itself depends upon national security, for without security and society is in danger of collapse or overthrow. National security is thus paramount not only in the State but also in the interest of the State but also in the interest of each individual member of the State, and measures designed to achieve and maintain that security must come first and subject to the provisions of the Constitution, must override, if need be, the interest of individual~ and of minorities with which they conflict. Article 11 of the Constitution supports this stand. In the same Kachasu case Blagden C. J. on legislature said: There is, however, a presumption that the Legislature has acted constitutionally and that the laws which it has passed are necessa.ry and reasonably justifiable." The learned C. J. went on to say that the appellant in that case had to prove that the regulations she was challenging were unconstitutional and invalid. The onus was on her to prove it, and as part of that onus she had to show that regulation 25 was not saved by any of the provisions of section 21(5) of the Constitution. The present case the learned judge accepted the principle laid down in the Patel vs Attorney-General which placed a burden on the respondent to prove that section 69 of the Penal Code was within the permitted derogation as stipulated in Article 20(3). Counsel for the appellants have complained that although the court co rrectly held that the respondent had the burden of proving as was held in the Patel vs the Attorney-General's case that sectio n 69 of the Penal Code was within the permitted derogation as stipulated in Article 20(3 ), ho wever, the learned judge fail ed to address the issue whether the respondent had indeed discharged that burden. I have read both Patel and Kachasu cases. rn the Patel's case the brief facts showed that the State had some infonnation