Macdonald Chipenzi and Ors v The People (HPR/03/2014) [2014] ZMHC 385 (4 December 2014)

' IN THE HIGH COURT FOR ZAMBIA IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA HOLDEN AT LUSAKA (Criminal Jurisdiction) (Criminal Jurisdiction) BETWEEN: BETWEEN: MACDONALD CHIPENZI MACDONALD CHIPENZI RICHARD SAKALA RICHARD SAKALA SIMON MWANZA SIMON MWANZA AND AND THE PEOPLE THE PEOPLE HPR/03/2014 HPR/03/2014 1 ST APPLICANT 1st APPLICANT 2ND APPLICANT 2nd APPLICANT 3RD APPLICANT 3rd APPLICANT RESPONDENT RESPONDENT BEFORE The Honorable Mr. Justice I. C. T. Chali in Open Court, at BEFORE The Honorable Mr. Justice I. C. T. Chali in Open Court, at Lusaka, the 4 th day of December, 2014. Lusaka, the 4th day of December, 2014. For the 1st Applicant: For the 1st Applicant: Mr. E. S. Silwamba, SC with Mr. L. Mr. E. S. Silwamba, SC with Mr. L. Linyama of Eric Silwamba, Jalasi & Linyama of Eric Silwamba, Jalasi & Linyama; Linyama; For the 2 nd and 3rd For the 2nd and 3rd Applicant: Applicant: For the Respondent: For the Respondent: Mr. L. Mwanabo of L. M. Chambers; and Mr. L. Mwanabo of L. M. Chambers; and Mr. B. C. Mutale of BMC Legal Mr. B. C. Mutale of BMC Legal Practitioners. Practitioners. Ms. M. Mushipe of Mushipe & Associates; Ms. M. Mushipe of Mushipe & Associates; Mr. M. Muchende of Dindi & Company; Mr. M. Muchende of Dindi & Company; and Mr. K. Mweemba of Keith Mweemba and Mr. K. Mweemba of Keith Mweemba Advocates. Advocates. Ms. M. C. Mwansa, Acting Principal State Ms. M. C. Mwansa, Acting Principal State Advocate, with Ms. M. P. Lungu, Senior Advocate, with Ms. M. P. Lungu, Senior State Advocate State Advocate ( ' f J2 J2 J U D G M E N T JUDGMENT Cases referred to: Cases referred to: 1. 1. Lt. Gen. Wilford Joseph Funjika v. Attorney General (2005) ZR 97. Lt. Gen. Wilford Joseph Funjika v. Attorney General (2005) ZR 97. 2. Mumbuna v. The People (1974) ZR 66. 2. Mumbuna v. The People (1974) ZR 66. 3. 3. 4. 4. 5. 5. 6. 6. 7. 7. 8. 8. 9. 9. Oliver John Irwin v. The People (1993/ 1994) ZR 7. Oliver John Irwin v. The People (1993/1994) ZR 7. Seaford Court Estates Limited v. Asher ( 194 9) 2 KB 481. Seaford Court Estates Limited v. Asher (1949) 2 KB 481. Government of Namibia v. Cultura 2000 (1993) 3 LRC 175. Government o f Namibia v. Cultura 2000 (1993) 3 LRC 175. Thebus & Another v. The State (2003) AHRLR 230 (SACC 2003). Thebus & Another v. The State (2003) AHRLR 230 (SACC 2003). Charles Onyango Obbo & Anotehr v. Attorney General of Uganda Charles Onyango Obbo & Anotehr v. Attorney General o f Uganda (Constitutional Appeal No. 2 of 2002). (Constitutional Appeal No. 2 o f 2002). R. v. Zundel (1992) 10 CCR (2nd) 193. R. v. Zundel (1992) 10 CCR (2^) 193. Mark Gova & Another v. Minister of Home Affairs (SC. 36/2000, Civil Mark Gova & Another v. Minister o f Home Affairs (SC. 36/2000, Civil Application No. 156/ 99). Application No. 156/99). 10. Re Munhumeso & Others (1994) ILRC 284. 10. Re Munhumeso & Others (1994) ILRC 284. 11. Mwewa Murano v. The People (2004) ZR 207. 11. Mwewa Murono v. The People (2004) ZR 207. Legislation referred to: Leaislation referred to: 1. 1. 2. 2. Constitution of Zambia, Chapter 1 of the Laws of Zambia. Constitution o f Zambia, Chapter 1 o f the Laws o f Zambia. Penal Code Act, Chapter 87 of the Laws of Zambia. Penal Code Act, Chapter 87 o f the Laws o f Zambia. ' J3 • International Instruments referred to: International Instruments referred to: 1. 1. 2. 2. African Charter on Human and People}s Rights. African Charter on Human and People’s Rights. African Union}s Declaration of Principles on Freedom of Expression African Union’s Declaration o f Principles on Freedom o f Expression (October 2002). (October 2002). 3. 3. International Covenant on Civil and Political Rights. International Covenant on Civil and Political Rights. The three Applicants were jointly charged before the Subordinate Court The three Applicants were jointly charged before the Subordinate Court at Lusaka with one count of publication of false information with intent at Lusaka with one count of publication of false information with intent to cause fear and alarm to the public, contrary to Section 67 ( 1) of the to cause fear and alarm to the public, contrary to Section 67 (1) of the Penal Code, Cl1apter 87 of the Laws of Zambia. Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence were that the trio, on the 10th day of The particulars of the offence were that the trio, on the 10lh day of December 2013, at Lusaka, in the Lusaka District of the Lusaka Province December 2013, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together did publish a of the Republic of Zambia jointly and whilst acting together did publish a false article in the DAILY NATION Tabloid Volume 3, issue number 632 false article in the DAILY NATION Tabloid Volume 3, issue number 632 dated 1 Oth December 2013, stating dated 10th December 2013, stating that "THE SECRET POLICE that “THE SECRET POLICE RECRUITMENT HAS BEEN CONDEMNED AT AS A CONDUIT OF RECRUITMENT HAS BEEN CONDEMNED AT AS A CONDUIT OF FUSING FOREIGN TRAINED MILITIA INTO THE MAIN STREAM POLICE FUSING FOREIGN TRAINED MILITIA INTO THE MAIN STREAM POLICE SERVICE" a statement or report likely to cause fear and alarm to the SERVICE” a statement or report likely to cause fear and alarm to the public or disturb public peace. public or disturb public peace. Each of the Applicants pleaded not guilty to the said charge. Each of the Applicants pleaded not guilty to the said charge. I J4 J4 Counsel for the Applicants then applied under Article 28 (2) of the Counsel for the Applicants then applied under Article 28 (2) of the Constitution of Zambia to have the matter referred to the High Court for Constitution of Zambia to have the matter referred to the High Court for the determination of the legality or constitutionality of Section 67 (1) of the determination of the legality or constitutionality of Section 67 (1) of the Penal Code. the Penal Code. Article 28 (2) of the Constitution provides thus: Article 28 (2) of the Constitution provides thus: ''28 (2)(a) If in any proceedings in any Subordinate Court any “28 (2)(a) If in any proceedings in any Subordinate Court any question arises as to the contravention of any of the provisions question arises as to the contravention of any of the provisions of Articles 11 to 26 inclusive, the person presiding in that of Articles 11 to 26 inclusive, the person presiding in that Court may, and shall if any party to the proceedings so Court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his requests, refer the question to the High Court unless, in his opinion the raising of the question is merely frivolous or opinion the raising of the question is merely frivolous or vexatious.'' vexatious.” The learned trial Magistrate, after hearing submissions from Counsel for The learned trial Magistrate, after hearing submissions from Counsel for the Applicants in support of the application, as well as from the the Applicants in support of the application, as well as from the prosecution in his Ruling of 5 th March 2014, found the application to prosecution in his Ruling of 5th March 2014, found the application to have merit and accordingly referred the matter to the High Court for have merit and accordingly referred the matter to the High Court for determination of the Constitutional issue. determination of the Constitutional issue. Both before the lower Court as well as before this Court, Counsel for the Both before the lower Court as well as before this Court, Counsel for the parties made very lengthy and spirited submissions, both oral and parties made very lengthy and spirited submissions, both oral and written, in support of their respective positions. I am grateful to Counsel written, in support of their respective positions. I am grateful to Counsel for the said submissions, which I have considered and taken into for the said submissions, which I have considered and taken into account in arriving at my decision. account in arriving at my decision. I , I JS J5 I must first deal with the objection raised by Counsel for the Respondent I must first deal with the objection raised by Counsel for the Respondent at the hearing of the matter before me. They argued that the application at the hearing of the matter before me. They argued that the application to have the matter referred to the High Court having been granted, the to have the matter referred to the High Court having been granted, the Applicants ought to have proceeded to make an appropriate application Applicants ought to have proceeded to make an appropriate application before the High Court, highlighting the constitutional issue upon which before the High Court, highlighting the constitutional issue upon which the High Court should adjudicate. They said that the Applicants had the High Court should adjudicate. They said that the Applicants had instead proceeded to make submissions on issues which were raised in instead proceeded to make submissions on issues which were raised in the Court below. They argued that that procedure was wrong. They said the Court below. They argued that that procedure was wrong. They said the matter ought to have come to the High Court, not as a criminal the matter ought to have come to the High Court, not as a criminal matter with the People as the Respondent, but as a constitutional matter matter with the People as the Respondent, but as a constitutional matter and the right respondent should then have been the Attorney General. and the right respondent should then have been the Attorney General. They cited the case of LT. GENERAL WILFORD JOSEPH FUNJIKA v. They cited the case of LT. GENERAL WILFORD JOSEPH FUNJIKA v. ATTORNEY GENERAL (2005) ZR 97 in aid of that submission. ATTORNEY GENERAL (2005) ZR 97 in aid of that submission. What I can ascertain on a reading of the FUNJIKA case is that, at the What I can ascertain on a reading of the FUNJIKA case is that, at the trial of FUNJIKA before the Subordinate Court on criminal charges of trial of FUNJIKA before the Subordinate Court on criminal charges of corrupt practices and abuse of authority of office, the prosecution had corrupt practices and abuse of authority of office, the prosecution had sought to produce in evidence a deposition which had been sworn in the sought to produce in evidence a deposition which had been sworn in the United Kingdom before a Magistrate who had also certified the deposition United Kingdom before a Magistrate who had also certified the deposition and the exhibits annexed to it. Objection to their production was on the and the exhibits annexed to it. Objection to their production was on the ground that Section 38 ( 1) of the Mutual Legal Assistance in Criminal ground that Section 38 (1) of the Mutual Legal Assistance in Criminal Matters Act, Chapter 98 of the Laws of Zambia, under which the Matters Act, Chapter 98 of the Laws of Zambia, under which the documents v.rere sought to be produced, was in serious conflict with documents were sought to be produced, was in serious conflict with Article 18 (2) (e) of the Constitution of Zambia. Article 18 (2) (e) of the Constitution of Zambia. It was contended It was contended on behalf of the Accused that what had arisen was a question of on behalf of the Accused that what had arisen was a question of I I , J6 J6 constitutional importance affecting the rights of the accused. Counsel constitutional importance affecting the rights of the accused. Counsel then requested the trial Magistrate to ref er the issue to the High Court then requested the trial Magistrate to refer the issue to the High Court for determination, and it was so referred. for determination, and it was so referred. However, I am unable to ascertain from the said report how the Attorney However, I am unable to ascertain from the said report how the Attorney General thereafter came to be a party in the proceedings in the High General thereafter came to be a party in the proceedings in the High Court. As such I do not find that authority to be of much assistance to Court. As such I do not find that authority to be of much assistance to the State, let alone to me. the State, let alone to me. As rightly pointed out by Counsel for the 1st Applicant, the FUNJIKA case As rightly pointed out by Counsel for the 1st Applicant, the FUNJIKA case does not deal with the mode of commencement of a constitutional case or does not deal with the mode of commencement of a constitutional case or the procedure to be followed when a matter is referred to the High Court the procedure to be followed when a matter is referred to the High Court for determination of a constitutional question. for determination of a constitutional question. In response to the issue raised by the State, Counsel for the 1st Applicant In response to the issue raised by the State, Counsel for the 1st Applicant submitted that the matter was competently before the High Court submitted that the matter was competently before the High Court pursuant to Article 28 (2). Article 28 ( 1) provides for applications by pursuant to Article 28 (2). Article 28 (1) provides for applications by persons other than those appearing before a Subordinate Court. The persons other than those appearing before a Subordinate Court. The distinction is, indeed, apparent when one reads the two clauses of Article distinction is, indeed, apparent when one reads the two clauses of Article 28. Therefore, the Applicants were not required to make a separate 28. Therefore, the Applicants were not required to make a separate application, such as by way of petition, for them to be heard on their application, such as by way of petition, for them to be heard on their • grievance. grievance. The relevant part of Article 28( 1) of the Constitution provides: The relevant part of Article 28(1) of the Constitution provides: , ) J7 J7 ''28( 1) ...... if any person alleges that any of the provisions of “28(1)..... if any person alleges that any o f the provisions of Articles 11 to 26 inclusive has been, is being or is likely to be Articles 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him, then, without prejudice to any contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court available, that person may apply for redress to the High Court which shall - which shall - ' (a) hear and determine any such application; (a) hear and determine any such application; (b) Determine any question arising in the case of any (b) Determine any question arising in the case of any person which is referred to it in pursuance of clause person which is referred to it in pursuance of clause (2); (2); and which may make such order, issue such writs and give and which may make such order, issue such writs and give such directions as it may consider appropriate for the purpose such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the of enforcing, or securing the enforcement of, any of the provisions of Articles 11 to 26 inclusive'' provisions of Articles 11 to 26 inclusive” Counsel argued that this was not a Court of first instance for the Counsel argued that this was not a Court of first instance for the Applicants but because of the matter having been referred to this Court Applicants but because of the matter having been referred to this Court when the lower court had no jurisdiction to deal with questions relating when the lower court had no jurisdiction to deal with questions relating to the Constitution. to the Constitution. t I I J8 J8 Indeed what I have is a "reference" rather than an originating process. Indeed what I have is a “reference” rather than an originating process. As can be observed from a reading of the whole of Article 28 , Clause (1) As can be observed from a reading of the whole of Article 28, Clause (1) governs the originating process when an individual seeks to enforce the governs the originating process when an individual seeks to enforce the protective provisions enshrined in Articles 11 to 26, whereas Clause (2) protective provisions enshrined in Articles 11 to 26, whereas Clause (2) relates to persons appearing before a Subordinate Court. relates to persons appearing before a Subordinate Court. As Counsel for the 1st Applicant pointed out, the issue as to how cases As Counsel for the 1st Applicant pointed out, the issue as to how cases such as the present ought to come before this Court was settled as far such as the present ought to come before this Court was settled as far back as MUMBUNA v. THE PEOPLE (1974) ZR 66 and OLIVER JOHN back as MUMBUNA v. THE PEOPLE (1974) ZR 66 and OLIVER JOHN IRWIN v. THE PEOPLE (1993/1994) ZR 7 in which the Supreme Court IRWIN v. THE PEOPLE (1993/1994) ZR 7 in which the Supreme Court approved of the procedure such as was adopted in the instant case. approved of the procedure such as was adopted in the instant case. The State's argument as to the proper procedure by which to bring the The State’s argument as to the proper procedure by which to bring the matter to the High Court under Article 28 (2) therefore falls away. matter to the High Court under Article 28 (2) therefore falls away. Having decided that the matter is properly before this Court, I now Having decided that the matter is properly before this Court, I now proceed to consider whether Section 67 of the Penal Code contravenes proceed to consider whether Section 67 of the Penal Code contravenes the Constitution and, if so, if it ought to be struck off the statute books. the Constitution and, if so, if it ought to be struck off the statute books. Section 67 ( 1) of the Penal Code under which the Applicants were Section 67 (1) of the Penal Code under which the Applicants were charged falls under Division 1 of Part II of the Penal Code which deals charged falls under Division 1 of Part II of the Penal Code which deals with offences against public order and reads: with offences against public order and reads: ''67 ( 1) “67 (1) Any person who publishes, whether orally or in Any person who publishes, whether orally or in writing or otherwise, any statement, rumour or report which is writing or otherwise, any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that such public peace, knowing or having reason to believe that such f ( I t J9 J9 statement, rumour or report statement, report rumour or is is false, false, is guilty of a is guilty of a misdemeanor and is liable to imprisonment for three years.'' misdemeanor and is liable to imprisonment for three years.” For completeness, I also re-cast here subsection (2) of Section 67, and it For completeness, I also re-cast here subsection (2) of Section 67, and it reads: reads: ''(2) It shall be no defence to a charge under subsection ( 1) “(2) It shall be no defence to a charge under subsection (1) that he did not know or did not have reason to believe that the that he did not know or did not have reason to believe that the statement, rumour or report was false, unless he proves that, statement, rumour or report was false, unless he proves that, prior to publication, he took reasonable measures to verify the prior to publication, he took reasonable measures to verify the accuracy of such statement, rumour or report.'' accuracy of such statement, rumour or report.” The Applicants' challenge of Section 67 is anchored on the provisions of The Applicants’ challenge of Section 67 is anchored on the provisions of Article 20 of the Constitution of Zambia which relates to the protection of Article 20 of the Constitution of Zambia which relates to the protection of the freedom of expression, which I now set out hereunder: the freedom of expression, which I now set out hereunder: ''20 ( 1) “20 (1) Except with his own consent, a person shall not be Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, that is hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without to impart and communicate ideas and information without interference, whether the communication be to the public interference, whether the communication be to the public generally or to any person or class or persons, and freedom generally or to any person or class or persons, and freedom from interference with his correspondence. from interference with his correspondence. • JlO J10 (2) (2) Subject to the provisions of this constitution, a law shall Subject to the provisions of this constitution, a law shall not make any provision that derogates from freedom of the not make any provision that derogates from freedom of the press. press. (3) Nothing contained in or done under the authority of any (3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of 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 this Article to the extent that it is shown that the law in question makes provision question makes provision (a) That is reasonably required in the interests of (a) That is reasonably required in the interests of defence, public safety, public order, public defence, public safety, public order, public morality or public health; or morality or public health; or (b) That is reasonably required for the purpose of (b) That is reasonably required for the purpose of protecting the reputations, rights and freedoms of protecting the reputations, rights and freedoms of other persons or the private lives of persons other persons or the private lives of persons concerned in legal proceedings, preventing the concerned in legal proceedings, preventing the disclosure of information received in confidence, disclosure of information received in confidence, maintaining the authority and independence of maintaining the authority and independence of the Courts, regulating educational institutions in the Courts, regulating educational institutions in the the interests of persons receiving instruction interests of persons receiving instruction therein, or the registration of, or regulating the therein, or the registration of, or regulating the technical administration technical administration or or the the technical technical operation of, newspapers and other publications, operation of, newspapers and other publications, telephony, telephony, telegraphy, telegraphy, posts, posts, wireless wireless broadcasting or television; or broadcasting or television; or 4 • (c) That imposes restrictions upon public officers; That imposes restrictions upon public officers; (c) Jl 1 J l l and except so far as that provision, or the thing done under 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 the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.'' reasonably justifiable in a democratic society.” The state's position, as submitted by Counsel, is that the freedom of The state’s position, as submitted by Counsel, is that the freedom of expression as enshrined in the constitution, like any other rights and expression as enshrined in the constitution, like any other rights and freedoms under the Bill of Rights, is not absolute, but is subject to freedoms under the Bill of Rights, is not absolute, but is subject to derogation as stipulated under Clause (3). derogation as stipulated under Clause (3). In as much as an individual In as much as an individual has his or her freedom of expression protected, the enjoyment of that has his or her freedom of expression protected, the enjoyment of that freedom may be restricted. They submitted that society is entitled to freedom may be restricted. They submitted that society is entitled to place some legitimate restrictions on the exercise of that freedom in order place some legitimate restrictions on the exercise of that freedom in order to prevent its abuse. to prevent its abuse. This, they said, means that the freedom may be restricted if it has the This, they said, means that the freedom may be restricted if it has the effect of causing fear and alarm in the public or to disturb the public effect of causing fear and alarm in the public or to disturb the public peace. And Section 67 of the Penal Code is one of the many pieces of peace. And Section 67 of the Penal Code is one of the many pieces of legislation that guard against abuse of that freedom. They argued that legislation that guard against abuse of that freedom. They argued that Section 67 conforms to the provisions of Article 20 (3) and ought not to Section 67 conforms to the provisions of Article 20 (3) and ought not to be struck off the statute books. It was submitted that it is the will of the be struck off the statute books. It was submitted that it is the will of the people that the rights and freedoms of individuals be restricted in order people that the rights and freedoms of individuals be restricted in order to protect the public safety, public order and in the interests of defence. to protect the public safety, public order and in the interests of defence. It is also in the interests of defence and for the preservation of public It is also in the interests of defence and for the preservation of public order that the public is protected from the dissemination of false and order that the public is protected from the dissemination of false and alarming information, rumours or reports. alarming information, rumours or reports. % • Jl2 J12 The state's position was that even from the press freedom point of view, The state’s position was that even from the press freedom point of view, information ought to be verified before it is published. information ought to be verified before it is published. For if the For if the information is verified, the publisher cannot be said to have offended information is verified, the publisher cannot be said to have offended against Section 6 7. The requirements for verification may even be said to against Section 67. The requirements for verification may even be said to be superfluous because it is the ethical duty of the press to do so. be superfluous because it is the ethical duty of the press to do so. Subsection (2), they said, does not in any way place any burden on an Subsection (2), they said, does not in any way place any burden on an accused person to prove his innocence. It merely comes into play, they It merely comes into play, they accused person to prove his innocence. submitted, in the event that an accused person is put on his defence, submitted, in the event that an accused person is put on his defence, when he must demonstrate the measures he took to verify the accuracy when he must demonstrate the measures he took to verify the accuracy of the information before he published it. However, the state still has the of the information before he published it. However, the state still has the onus of proving the falsity of the information published whether or onus of proving the falsity of the information published whether or not the accused raises the defence provided for in Subsection (2). It not the accused raises the defence provided for in Subsection (2). It does not breach Article 18 (7) of the Constitution, which forbids (7) of the Constitution, which forbids does not breach Article 18 trial, because the compelling an accused compelling an accused to give evidence at the trial, because the to give evidence at the Applicants have various ways of defending themselves once placed on Applicants have various ways of defending themselves once placed on their defence, including opting to remain silent. their defence, including opting to remain silent. Counsel for the State also submitted that Section 67 of the Penal Code Counsel for the State also submitted that Section 67 of the Penal Code and Articles 18 and 20 of the Constitution should be given their ordinary and Articles 18 and 20 of the Constitution should be given their ordinary grammatical and natural meaning. Where issues of ambiguity arise and grammatical and natural meaning. Where issues of ambiguity arise and wl1e11 tl-ie intention of the legislature cannot be ascertained from the when the intention of the legislature cannot be ascertained from the words in the statute, then other rules of interpretation may be employed words in the statute, then other rules of interpretation may be employed as stated in the FUNJIKA case. Ho\~:ever, Counsel said, Section 67 is as stated in the FUNJIKA case. However, Counsel said, Section 67 is simple and clear and does not need any interpretation. Counsel cited the simple and clear and does not need any interpretation. Counsel cited the English Court of Appeal case of SEAFORD COURT ESTATES LIMITED v. English Court of Appeal case of SEAFORD COURT ESTATES LIMITED v. ASHER ( 1949) 2 KB 481 where Lord Denning said at page 499 of the ASHER (1949) 2 KB 481 where Lord Denning said at page 499 of the ' • J13 J13 report ''A Judge must not alter that of which (a statute) is woven, but report “A Judge must not alter that of which (a statute) is woven, but he can and should iron the creases.'' They submitted that there are no he can and should iron the creases.” They submitted that there are no creases in Section 67 which need ironing over or on the basis of which it creases in Section 67 which need ironing over or on the basis of which it can be struck off for being unconstitutional. can be struck off for being unconstitutional. Counsel for the State concluded their submissions by criticizing other Counsel for the State concluded their submissions by criticizing other matters raised by the Applicants as amounting to a fishing expedition, matters raised by the Applicants as amounting to a fishing expedition, making it difficult to understand what exactly the Applicants need from making it difficult to understand what exactly the Applicants need from the Court. Those issues include alleged defect in the charge sheet where the Court. Those issues include alleged defect in the charge sheet where the 1st Applicant's name was misspelt; whether to refer to the Police as a the 1st Applicant’s name was misspelt; whether to refer to the Police as a Service or a Force; etc. Service or a Force; etc. However, the view I take of those so-called issues is that they are However, the view I take of those so-called issues is that they are irrelevant to the matter that has come before me because they do not irrelevant to the matter that has come before me because they do not constitute alleged breaches of Articles 11 to 26 which are the issues that constitute alleged breaches of Articles 11 to 26 which are the issues that are properly to be brought by way of reference in terms of Article 28 (2) of are properly to be brought by way of reference in terms of Article 28 (2) of the Constitution. the Constitution. I, therefore, do not propose to consider them in this I, therefore, do not propose to consider them in this judgment. judgment. In the SEAFORD COURT ESTATES case, the Court was, in part, dealing In the SEAFORD COURT ESTATES case, the Court was, in part, dealing with the approach a Court ought to adopt in interpreting a statute or with the approach a Court ought to adopt in interpreting a statute or particular words therein. Hence Lord Denning's sentiments cited earlier particular words therein. Hence Lord Denning’s sentiments cited earlier in this judgment. One of the cannons is to so interpret the statute or in this judgment. One of the cannons is to so interpret the statute or words therein as to give effect to the governing principles embodied in the words therein as to give effect to the governing principles embodied in the legislation. legislation. ' • Jl4 J 14 Lord Denning proceeded to state the following at pages 498 and 499: Lord Denning proceeded to state the following at pages 498 and 499: ''Whenever a statute comes up for consideration, it must be “Whenever a statute conies up for consideration, it must be remembered that it is not within human powers to foresee the remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all is not possible to provide for them in terms free from all ambiguity..... A Judge, believing himself to be fettered by the ambiguity.... A Judge, believing himself to be fettered by the supposed rule that he must look to the language (of the statute supposed rule that he must look to the language (of the statute or document) and nothing else, laments that the draftsmen or document) and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and if Acts of Parliament were drafted with divine prescience and perfect clarity. perfect clarity. In the absence of it, when a defect appears, a In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the He must set to work on the constructive task of finding the intention of parliament, and he must do this not only from the intention of parliament, and he must do this not only from the language of the statute, but also from a consideration of the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement which it was passed to remedy, and then he must supplement the written word so as to give ''force and life'' to the intention the written word so as to give “force and life” to the intention of the legislature..... Put into homely metaphor it is this: A of the legislature.... Put into homely metaphor it is this: A Judge should ask himself the question: If the makers of the Judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as how would they have straightened it out? He must then do as they would have done.'' they would have done.” ' • JlS J15 Approaching this case that way, what comes to mind first are the Approaching this case that way, what comes to mind first are the circumstances and social conditions surrounding the promulgation of circumstances and social conditions surrounding the promulgation of that law. In that case, I cannot help but observe that the earliest point that law. In that case, I cannot help but observe that the earliest point in the application of Section 67 in this country was 1938 and the latest in the application of Section 67 in this country was 1938 and the latest amendment thereto was 1958. That was well deep in ,vhat we refer to amendment thereto was 1958. That was well deep in what we refer to euphemistically as the Colonial era. And it is not with any sense of euphemistically as the Colonial era. And it is not with any sense of euphoria that we do so. Applying Lord Denning's guidelines from the euphoria that we do so. Applying Lord Denning’s guidelines from the to first SEAFORD COURT ESTATES case, we are then compelled SEAFORD COURT ESTATES case, we are then compelled to first consider the intention of the makers of the law at the time. The answer, consider the intention of the makers of the law at the time. The answer, in my view, is not to be found in the language of Section 6 7, for the in my view, is not to be found in the language of Section 67, for the language is unambiguous. language is unambiguous. The law simply prohibits the publication of any false "statement, rumour The law simply prohibits the publication of any false “statement, rumour or report" which is false and which is "likely to cause fear and alarm to or report” which is false and which is “likely to cause fear and alarm to the public or to disturb the public peace." the public or to disturb the public peace.” I understand the Section to presuppose knowledge or belief on the part of I understand the Section to presuppose knowledge or belief on the part of the maker of the statement, rumour or report as to its falsity and thereby the maker of the statement, rumour or report as to its falsity and thereby the guilt of the maker, unless the maker can establish the defence the guilt of the maker, unless the maker can establish the defence provided by Subsection provided by Subsection (2). The Section penalizes a person (2). The Section penalizes a person for for communicating any falsehood which has a negative impact on the public. communicating any falsehood which has a negative impact on the public. It imposes a duty on every person to only communicate the truth and to It imposes a duty on every person to only communicate the truth and to hold back to oneself any information with a tinge of falsehood. hold back to oneself any information with a tinge of falsehood. In the In the event that the information is false, there is a duty to show what efforts event that the information is false, there is a duty to show what efforts the accused made to verify it before publication. the accused made to verify it before publication. In my opinion, that In my opinion, that ' . ft J16 J16 goes against the enshrined right against compellability of an accused goes against the enshrined right against compellability of an accused person to give evidence at his trial as guaranteed under Article 18 (7) of person to give evidence at his trial as guaranteed under Article 18 (7) of the Constitution. the Constitution. As already stated, there is no doubt as to the genesis of Section 67, that As already stated, there is no doubt as to the genesis of Section 67, that is to say, 1938 and amended in 1958. Counsel for the 2nd and 3 rd is to say, 1938 and amended in 1958. Counsel for the 2nd and 3rd Applicants have traced its roots to the Statute of Westminster of 1275 in Applicants have traced its roots to the Statute of Westminster of 1275 in the United Kingdom, Zambia's former colonial masters. That statute the United Kingdom, Zambia’s former colonial masters. That statute prescribed the offence "scandal um magnatum", which was the offence of prescribed the offence “scandalum magnatum”, which was the offence of making defamatory statements regarding persons of high rank, such as making defamatory statements regarding persons of high rank, such as peers, judges or distinguished officers of state as defined in Osborne's peers, judges or distinguished officers of state as defined in Osborne’s Concise Law Dictionary (11 th Edition). The words used in the statute Concise Law Dictionary (11th Edition). The words used in the statute read in part: '' ..... from henceforth none be so hardy to tell or publish read in part: “ ..... from henceforth none be so hardy to tell or publish any false news or tales whereby discord, or occasion of discord or any false news or tales whereby discord, or occasion of discord or slander may grow between King and his people, or the great men of slander may grow between King and his people, or the great men of the Realm.'' the Realm.” It cannot be denied that the post colonial conditions and political climate It cannot be denied that the post colonial conditions and political climate are very different from those of the colonial times. Whereas presently are very different from those of the colonial times. Whereas presently there is in place a constitution with an entrenched Bill of Rights, there there is in place a constitution with an entrenched Bill of Rights, there was none during the colonial era. I believe the intention of the makers of was none during the colonial era. I believe the intention of the makers of the law on "false news" at the time to have been quite different from the law on “false news” at the time to have been quite different from those which the present democratic dispensation could have allowed. those which the present democratic dispensation could have allowed. Can it or ought it to be sustained in the face of the current constitutional Can it or ought it to be sustained in the face of the current constitutional developments as well as world view? developments as well as world view? ' • J17 J17 The Zambia's Constitution provides for the supremacy of the constitution The Zambia’s Constitution provides for the supremacy of the constitution under Article 1 (3) in the following words: under Article 1 (3) in the following words: ''1. “ 1. (3) This Constitution is the Supreme law of Zambia and (3) This Constitution is the Supreme law of Zambia and if any other law is inconsistent with this constitution if any other law is inconsistent with this constitution that other law shall, to the extent of the inconsistency, that other law shall, to the extent of the inconsistency, be void.'' be void.” In the South African case of THEBUS & ANOTHER v. THE STATE (2003) In the South African case of THEBUS & ANOTHER v. THE STATE (2003) AHRLR 230 AHRLR 230 speaking about constitutional (SACC 2003) when (SACC 2003) when speaking about constitutional supremacy, the Constitutional Court had the following to say on the supremacy, the Constitutional Court had the following to say on the supremacy of the Constitution which I think must carry equal force in supremacy of the Constitution which I think must carry equal force in Zambia: Zambia: ''Since the advent of constitutional democracy, all law must “Since the advent of constitutional democracy, all law must conform to the command of the supreme law, the Constitution, conform to the command of the supreme law, the Constitution, from which all law derives its legitimacy, force and validity. from which all law derives its legitimacy, force and validity. Thus, any law which precedes the coming into force of the Thus, any law which precedes the coming into force of the Constitution remains binding and valid only to the extent of Constitution remains binding and valid only to the extent of its constitutional consistency. its constitutional consistency. The Bill of rights enshrines fundamental rights which are to be The Bill of rights enshrines fundamental rights which are to be enjoyed by all people enjoyed by all people in our country. in our country. Subject to the Subject to the limitations envisaged in (the Constitution), the State must limitations envisaged in (the Constitution), the State must respect, protect, promote and fulfil the rights in the Bill of respect, protect, promote and fulfil the rights in the Bill of Rights. The protected rights therein apply to all law and bind Rights. The protected rights therein apply to all law and bind all organs of the State, including the Judiciary.'' all organs of the State, including the Judiciary.” I f • Jl8 J18 It is the post independence constitutions which have provided for the Bill It is the post independence constitutions which have provided for the Bill of Rights in which the freedom of expression is also provided for. There of Rights in which the freedom of expression is also provided for. There was no freedom of expression in the colonial legislation. So that when was no freedom of expression in the colonial legislation. So that when Section 67 of the Penal Code was being enacted, I believe there was no Section 67 of the Penal Code was being enacted, I believe there was no consideration of a native's right to free speech. consideration of a native’s right to free speech. Various authorities have been cited by Counsel for the Applicants for the Various authorities have been cited by Counsel for the Applicants for the need to re-examine colonial legislation vis-a-vis the current political and need to re-examine colonial legislation vis-a-vis the current political and legal environment. Close to home is the case of GOVERNMENT OF legal environment. Close to home is the case of GOVERNMENT OF NAMIBIA v. CULTURA 2000 (1993) 3 LRC 175 in which the Appeal Court NAMIBIA v. CULTURA 2000 (1993) 3 LRC 175 in which the Appeal Court of the Country had this to say: of the Country had this to say: ''Clearly many of the laws enacted by the South African “Clearly many of the laws enacted by the South African government during its administration (of Namibia) and many of government during its administration (of Namibia) and many of the acts performed by that administration during that time the acts performed by that administration during that time were plainly inconsistent with both the ethos and the express were plainly inconsistent with both the ethos and the express provisions of the new constitution and therefore unacceptable provisions of the new constitution and therefore unacceptable to the new Namibia. But there were clearly other acts with no to the new Namibia. But there were clearly other acts with no ideological contents such as the registration of births, deaths ideological contents such as the registration of births, deaths and marriages which did not fall into this category. On the and marriages which did not fall into this category. On the other hand, acts of the previous administration which might other hand, acts of the previous administration which might appear on the face of it to be purely administrative and appear on the face of it to be purely administrative and ideologically colourless and unobjectionable, might on a proper ideologically colourless and unobjectionable, might on a proper investigation be discovered to be hopelessly unacceptable and investigation be discovered to be hopelessly unacceptable and entirely motivated by policies plainly inconsistent with the entirely motivated by policies plainly inconsistent with the express and clear intention of the constitution.'' express and clear intention of the constitution.” • Jl9 J19 Looked at from the era of its enactment, therefore, I am of the view that Looked at from the era of its enactment, therefore, I am of the view that the intention in Section 67 was to suppress native dissenting views the intention in Section 67 was to suppress native dissenting views which could have the effect of formenting insurrection which could have the effect of formenting insurrection against the against the colonial rulers. colonial rulers. In the absence of a constitutionally guaranteed right it In the absence of a constitutionally guaranteed right it may have been good law at the time, at least to the ruling elite though may have been good law at the time, at least to the ruling elite though not to the freedom agitations. It may, therefore, have served a purpose at not to the freedom agitations. It may, therefore, have served a purpose at the time. the time. Again various legal procedents from the diaspora were cited by Counsel Again various legal procedents from the diaspora were cited by Counsel for the Applicants in attacking Section 67. Near to home again is the for the Applicants in attacking Section 67. Near to home again is the Ugandan case of CHARLES ONYANGO OBBO & ANOTHER v. ATTORNEY Ugandan case of CHARLES ONYANGO OBBO & ANOTHER v. ATTORNEY GENERAL (Constitutional Appeal No. 2 of 2002) in which the Supreme GENERAL (Constitutional Appeal No. 2 of 2002) in which the Supreme Court of that Country considered, inter alia, the constitutionality of Court of that Country considered, inter alia, the constitutionality of Section 50 of the Ugandan Penal Code which criminalised Section 50 of the Ugandan Penal Code which criminalised the the publication of false news, very similar to the Zambia's Section 6 7 in most publication of false news, very similar to the Zambia’s Section 67 in most material aspects. material aspects. In the OBBO case, the appellants had been charged with publishing false In the OBBO case, the appellants had been charged with publishing false news in a newspaper article titled "Kabila paid Uganda in Gold, says news in a newspaper article titled “Kabila paid Uganda in Gold, says report." The article alleged, inter alia, that the new President of the report.” The article alleged, inter alia, that the new President of the Democratic Republic of Congo had given a large consignment of gold to Democratic Republic of Congo had given a large consignment of gold to the Government of Uganda as payment for "services rendered" by Uganda the Government of Uganda as payment for “services rendered” by Uganda in the removal of the former military dictator, the late Mobutu Sese Seka. in the removal of the former military dictator, the late Mobutu Sese Seko. The appellants challenged their prosecution contending that the law The appellants challenged their prosecution contending that the law which the state had invoked to prosecute them violated their several which the state had invoked to prosecute them violated their several rights guaranteed by the constitution. rights guaranteed by the constitution. I t • # J20 J20 Apart from considering the provisions of the Constitution of Uganda, the Apart from considering the provisions of the Constitution of Uganda, the Supreme Court also took the broader view by considering international Supreme Court also took the broader view by considering international legal instruments such as the African Charter on Human and People's legal instruments such as the African Charter on Human and People’s Rights which under Article 9 provides: Rights which under Article 9 provides: '' 1. Every “ 1. Every shall have individual individual shall have the right the right to to • receive receive information. information. 2. 2. Every individual shall have the right to express opinions Every individual shall have the right to express opinions within the law.'' within the law.” The Court also considered the African Union's Declaration of Principles The Court also considered the African Union’s Declaration of Principles on Freedom of Expression in Africa of October, 2002 which states: on Freedom of Expression in Africa of October, 2002 which states: ''1. Freedom of expression and information, including the “ 1. Freedom of expression and information, including the right to seek, receive and impart information and ideas, right to seek, receive and impart information and ideas, either orally, in writing or print, in the form of art, or either orally, in writing or print, in the form of art, or through any other form of communication, including through any other form of communication, including across frontiers, is a fundamental and inalienable human across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy. right and an indispensable component of democracy. 2. 2. Everyone shall have an equal opportunity to exercise the Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information right to freedom of expression and to access information without discrimination.'' without discrimination.” f • * J21 J21 Lastly among the legal instruments considered by the Ugandan Court Lastly among the legal instruments considered by the Ugandan Court was Article 10 of the International Covenant on Civil and Political Rights was Article 10 of the International Covenant on Civil and Political Rights which states: which states: ''1. Everyone shall have the right to hold opinions without “ 1. Everyone shall have the right to hold opinions without interference. interference. 2. 2. Everyone shall have the right to freedom of expression. Everyone shall have the right to freedom of expression. This right shall include freedom to seek, receive and This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of impart information and ideas of all kinds, regardless of frontiers either orally, in writing or in print, in the form frontiers either orally, in writing or in print, in the form of art, or through any other media of his choice.'' of art, or through any other media of his choice.” In his judgment, MULENGA, J . S. C said: In his judgment, MULENGA, J. S. C said: ''From the foregoing different definitions, it is evident that the “From the foregoing different definitions, it is evident that the right to freedom of expression extends to holding, receiving right to freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information. It and imparting all forms of opinions, ideas and information. It is not confined to categories, such as correct opinions, sound is not confined to categories, such as correct opinions, sound ideas or truthful information. Subject to the (Constitutional) ideas or truthful information. Subject to the (Constitutional) limitation, a person's expression or statement is not precluded limitation, a person’s expression or statement is not precluded from the constitutional protection simply because it is thought from the constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or by another or others to be false, erroneous, controversial or unpleasant. Everyone is free to express his or her views. unpleasant. Everyone is free to express his or her views. Indeed, the protection is most relevant and required when a Indeed, the protection is most relevant and required when a person's views are opposed or objected to by Society or any person’s views are opposed or objected to by Society or any ' ,I J22 J22 part thereof as ''false'' or ''wrong'' ..... (Section 50) criminalises part thereof as “false” or “wrong”.... (Section 50) criminalises conduct that conduct that is otherwise a is otherwise a legitimate exercise of the legitimate exercise of the constitutionally protected right to freedom of expression ...... . constitutionally protected right to freedom of expression...... A democratic society respects and promotes the citizens' A democratic society respects and promotes the citizens’ individual right to freedom of expression, because it derives individual right to freedom of expression, because it derives benefit from the exercise of that freedom by its citizens. In benefit from the exercise of that freedom by its citizens. In order to maintain that benefit, a democratic society chooses to order to maintain that benefit, a democratic society chooses to tolerate the exercise of the freedom even in respect of tolerate the exercise of the freedom even in respect of ''demonstrably untrue and alarming statement,'' rather than “demonstrably untrue and alarming statement,” rather than '' suppress 1 •••• suppress it....” ·t The learned Supreme Court Judge then cited an article in SOCIETY vol. The learned Supreme Court Judge then cited an article in SOCIETY vol. 24 p. 8 No. 1 of Nov /Dec 1986 in which the learned and noble Archibold 24 p. 8 No. 1 of Nov/Dec 1986 in which the learned and noble Archibold Cox opined thus: Cox opined thus: ''Some propositions seem true or false beyond rational debate. “Some propositions seem true or false beyond rational debate. Some false and harmful political and religious doctrines gain Some false and harmful political and religious doctrines gain wide public acceptance. Adolf Hitler's brutal theory of a wide public acceptance. Adolf Hitler’s brutal theory of a ''master race'' is sufficient example. We tolerate such foolish “master race” is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. The liberty true but because freedom of speech is indivisible. The liberty cannot be denied to some ideas and saved for others. The cannot be denied to some ideas and saved for others. The reason is plain enough, no man, no committee, and surely no reason is plain enough, no man, no committee, and surely no government, has the infinite wisdom and disinterestedness government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what accurately and unselfishly to separate what is true from what is debatable, and both from what is false.'' is debatable, and both from what is false.” t « J23 J23 The learned Mulenga J. S. C, also cited with approval the words of The learned Mulenga J. S. C, also cited with approval the words of McLachlin Jin the Canadian Supreme Court case of R v. ZUNDEL (1992) McLachlin J in the Canadian Supreme Court case of R v. ZUNDEL (1992) 10 C. C. R (2 nd ) 193 in which that learned Judge had this to say: 10 C. C. R (2nd) 193 in which that learned Judge had this to say: ''Tests of free expression frequently involve a contest between “Tests o f free expression frequently involve a contest between the (majority) view of what is true or right and an unpopular the (majority) view of what is true or right and an unpopular minority view. As Holmes J. stated over 50 years ago, the fact minority view. As Holmes J. stated over 50 years ago, the fact the particular content of a person's speech might ''excite the particular content of a person’s speech might “excite popular prejudice'' is no reason to deny it protection for ''if popular prejudice” is no reason to deny it protection for “if there there is any principle of the constitution is any principle of the constitution that more that more imperatively call for attachment than any other it is the imperatively call for attachment than any other it is the principle of free thought - not free thought for those who agree principle of free thought - not free thought for those who agree with us but freedom for the thought that we have'' .... Thus the with us but freedom for the thought that we have”.... Thus the guarantee of freedom of expression serves..... to preclude the guarantee o f freedom of expression serves.... to preclude the majority's perception of truth or public majority’s perception of truth or public interest interest from from smothering the minority perception..... Before we deny a smothering the minority perception.... Before we deny a person the protection which the most fundamental law of this person the protection which the most fundamental law of this land on its face accords to the person, we should, in my belief, land on its face accords to the person, we should, in my belief, be entirely certain that there can be no justification for be entirely certain that there can be no justification for offering protection. The criterion of falsity falls short of this offering protection. The criterion of falsity falls short of this certainty given that false statements can sometimes have certainty given that false statements can sometimes have value and given the difficulty of conclusively determining total value and given the difficulty of conclusively determining total falsity. Applying the broad, purposive interpretation of the falsity. Applying the broad, purposive interpretation of the freedom of expression guaranteed by freedom of expression guaranteed by (the Constitution) (the Constitution) hitherto adhered to by this Court, I cannot accede to the hitherto adhered to by this Court, I cannot accede to the < C /' J24 J24 argument that those who deliberately publish falsehoods are argument that those who deliberately publish falsehoods are for that reason alone precluded from claiming the benefit of for that reason alone precluded from claiming the benefit of the constitutional guarantee of free speech.'' the constitutional guarantee of free speech.” I must state that the judgment of Mulenga, J. S. C, went down very well I must state that the judgment of Mulenga, J. S. C, went down very well with the other learned justices in the OBBO case, as it did with me also. with the other learned justices in the OBBO case, as it did with me also. It cannot be an overstatement, in my view, that Zambia, like most It cannot be an overstatement, in my view, that Zambia, like most growing democracies is committed to upholding the right to freedom of growing democracies is committed to upholding the right to freedom of expression and of the press. At only 50 years of post independence and expression and of the press. At only 50 years of post independence and constitutional democratic practices, the country may not lay too much constitutional democratic practices, the country may not lay too much claim to long and entrenched constitutional practices. However, that claim to long and entrenched constitutional practices. However, that must be the raison de'tre to spur us to entrenching, inter alia, the rights must be the raison d e ’tre to spur us to entrenching, inter alia, the rights and freedoms guaranteed under the Bill of Rights, and especially, in this and freedoms guaranteed under the Bill of Rights, and especially, in this case, the right of freedom to hold opinions and to receive and impart case, the right of freedom to hold opinions and to receive and impart ideas and information without interference. ideas and information without interference. As the Supreme Court observed in the Canadian case of ZUNDEL, the As the Supreme Court observed in the Canadian case of ZUNDEL, the danger of applying Section 67 in the present form is that the prohibition danger of applying Section 67 in the present form is that the prohibition against publishing false news affects not only against publishing those caught and false news affects not only those caught and prosecuted, but also those who may refrain from saying what they would prosecuted, but also those who may refrain from saying what they would like to because of the fear that they will be caught. This is compounded like to because of the fear that they will be caught. This is compounded by the perception that falsity is defined by the majority, hence excluding by the perception that falsity is defined by the majority, hence excluding minority groups or individuals from laying out their beliefs by way of minority groups or individuals from laying out their beliefs by way of speech. Section 67 makes possible conviction for virtually any statement speech. Section 67 makes possible conviction for virtually any statement < C * • J25 J25 which does not meet the majority definition of truth and lends force to which does not meet the majority definition of truth and lends force to the argument that the law could be used or abused in circular fashion the argument that the law could be used or abused in circular fashion essentially to permit the prosecution of news which is unpopular in the essentially to permit the prosecution of news which is unpopular in the ears of those in authority. ears of those in authority. Part of the argument on behalf of the State was that it is only those false Part of the argument on behalf of the State was that it is only those false statements, reports or rumours which have a negative impact of causing statements, reports or rumours which have a negative impact of causing discord which are intended for prosecution under Section 67, and not discord which are intended for prosecution under Section 67, and not harmless though mischievous stories. But as was observed in the OBBO harmless though mischievous stories. But as was observed in the OBBO case as well as in the ZUNDEL case, the law is intended for the jokers case as well as in the ZUNDEL case, the law is intended for the jokers like some of the tabloids circulating in Zambia, as well as for persons like some of the tabloids circulating in Zambia, as well as for persons who seriously believe in the ideas they seek to communicate. The short who seriously believe in the ideas they seek to communicate. The short answer to the argument that false news may have the effect of causing answer to the argument that false news may have the effect of causing fear and alarm in the public is that indeed human beings are made of fear and alarm in the public is that indeed human beings are made of different temperaments with some who are excitable at the least different temperaments with some who are excitable at the least provocation. provocation. I do not therefore accept that the majority or even the I do not therefore accept that the majority or even the Court's perception as to the possible effect of the false news ought to be a Court’s perception as to the possible effect of the false news ought to be a criteria in the enforcement of a law. criteria in the enforcement of a law. That then takes me to a consideration of the derogations to the right to That then takes me to a consideration of the derogations to the right to freedom of expression under the constitution. Before I do so, let me state freedom of expression under the constitution. Before I do so, let me state here that the 13 th Century English Statute that created the offence of here that the 13th Century English Statute that created the offence of "Scandal um Magnatum" was abolished in England in 1887. “Scandalum Magnatum” was abolished in England in 1887. If it was If it was found to be undesirable by its originators as far back as the 19 t h century, found to be undesirable by its originators as far back as the 19th century, can there be justification for its retention by Zambia, two centuries later? can there be justification for its retention by Zambia, two centuries later? I do not find any such justification. I do not find any such justification. < < I I * • J26 J26 It will be recalled that Zimbabwe did also at one time have a law It will be recalled that Zimbabwe did also at one time have a law crimininalising "false news", of whose retention in post independence crimininalising “false news”, of whose retention in post independence Zimbabwe GUBBA Y, C. J frowned upon in the case of MARK GOVA & Zimbabwe GUBBAY, C. J frowned upon in the case of MARK GOVA & ANOTHER v. MINISTER OF HOME AFFAIRS & ANOTHER (S. C. 36/2000 ANOTHER v. MINISTER OF HOME AFFAIRS & ANOTHER (S. C. 36/2000 Civil Application No. 156/99). Civil Application No. 156/99). Indeed it is trite that every right and freedom is subject to reasonable Indeed it is trite that every right and freedom is subject to reasonable legal restrictions. Hence the derogations we observe under Article 20 (3). legal restrictions. Hence the derogations we observe under Article 20 (3). However, the derogations thereunder stipulate that where a law takes However, the derogations thereunder stipulate that where a law takes away the guaranteed right and that law is "shown not to be reasonably away the guaranteed right and that law is “shown not to be reasonably justifiable in a democratic society" then that law is unconstitutional and justifiable in a democratic society” then that law is unconstitutional and therefore not permissible and ought not to remain on the statute books. therefore not permissible and ought not to remain on the statute books. As was said in the THEBUS case, ''if the impugned legislation indeed As was said in the THEBUS case, “if the impugned legislation indeed limits a guaranteed right, the next question limits a guaranteed right, the next question is whether the is whether the limitation is reasonable and justifiable, regard being had to the limitation is reasonable and justifiable, regard being had to the considerations stipulated in (the Constitution). considerations stipulated in (the Constitution). If the impugned If the impugned legislation does not satisfy the justification standard and a remedial legislation does not satisfy the justification standard and a remedial option, through reading in, notional or actual severance is not option, through reading in, notional or actual severance is not competent, it must be declared unconstitutional and invalid. competent, it must be declared unconstitutional and invalid. In In that event, that event, the the responsibility and power responsibility and power to address to address the the consequences of the declaration of invalidity resides, not with the consequences of the declaration of invalidity resides, not with the Courts, but pre-eminently with the legislative authority. Courts, but pre-eminently with the legislative authority. Admittedly defining what is "reasonably justifiable" in a democratic Admittedly defining what is “reasonably justifiable” in a democratic society can be problematic. As was observed by the Supreme Court of society can be problematic. As was observed by the Supreme Court of Zimbambwe in RE MUNHUMESO & OTHERS (1994) I L. R. C. 284: Zimbambwe in RE MUNHUMESO & OTHERS (1994) I L. R. C. 284: ' ' . J27 J27 ''What is reasonably justifiable in a democratic society is an “What is reasonably justifiable in a democratic society is an illusive concept, one which cannot be precisely defined by the illusive concept, one which cannot be precisely defined by the Courts. There is no legal yardstick save that the quality of Courts. There is no legal yardstick save that the quality of reasonableness of the provision under challenge is to be judged reasonableness of the provision under challenge is to be judged according to whether it is arbitrary or excessively invades the according to whether it is arbitrary or excessively invades the enjoyment of a constitutionally guaranteed right.'' enjoyment of a constitutionally guaranteed right.” The Zimbambwean Supreme Court emphasized the importance of the The Zimbambwean Supreme Court emphasized the importance of the freedom of expression thus in Re Munhumeso: freedom of expression thus in Re Munhumeso: ''Freedom of expression, one of the most precious of all the “Freedom of expression, one of the most precious of all the guaranteed freedoms, has four broad special purposes to serve: guaranteed freedoms, has four broad special purposes to serve: (i) (i) It helps an individual to obtain self-fulfilment; It helps an individual to obtain self-fulfilment; (ii) (ii) It assists in the discovery of truth; It assists in the discovery of truth; (iii) (iii) It strengthens the capacity of an individual to participate It strengthens the capacity of an individual to participate in decision making; and in decision making; and (iv) (iv) It provides a mechanism by which it would be possible to It provides a mechanism by which it would be possible to establish a reasonable balance between stability and establish a reasonable balance between stability and social change. social change. In dealing with when a constitutionally guaranteed right may be limited In dealing with when a constitutionally guaranteed right may be limited under the derogation clause in the Constitution, Mulenga, J. S. C in the under the derogation clause in the Constitution, Mulenga, J. S. C in the OBBO case went on to say: OBBO case went on to say: r r , t a J28 J28 ...... pro ec 10n of the guaranteed rights '' “..... protection of the guaranteed rights t· t • is the primary IS • primary the objective of the Constitution. Limiting their enjoyment is an objective of the Constitution. Limiting their enjoyment is an exception to their protection, and is therefore a secondary exception to their protection, and is therefore a secondary objective. Although the Constitution provides for both, it is objective. Although the Constitution provides for both, it is obvious that the primary objective must be dominant. It can obvious that the primary objective must be dominant. It can be overridden only in the exceptional circumstances that give be overridden only in the exceptional circumstances that give rise to that secondary objective. rise to that secondary objective. In that eventuality, only In that eventuality, only minimal minimal impairment of enjoyment of the right, strictly impairment of enjoyment of the right, strictly warranted by the exceptional circumstance, is permissible.'' warranted by the exceptional circumstance, is permissible.” Again as was said in the THEBUS case: Again as was said in the THEBUS case: ''In our constitutional setting, any crime, whether common law “In our constitutional setting, any crime, whether common law or legislative in origin, must be constitutionally compliant. It or legislative in origin, must be constitutionally compliant. It may not unjustifiably limit any of the protected rights or may not unjustifiably limit any of the protected rights or offend constitutional principles. Thus, the criminal norm may offend constitutional principles. Thus, the criminal norm may not deprive a person of his or her freedom arbitrarily or not deprive a person of his or her freedom arbitrarily or without just cause. The ''just cause'' points to substantive without just cause. The “just cause” points to substantive protection against being deprived of freedom arbitrarily or protection against being deprived of freedom arbitrarily or without an adequate or acceptable reason and to a procedural without an adequate or acceptable reason and to a procedural right to a fair trial. The meaning of ''just cause'' must be right to a fair trial. The meaning of “just cause” must be grounded upon and (be) consonant with the values expressed in grounded upon and (be) consonant with the values expressed in section 1 of the Constitution and gathered from the provisions section 1 of the Constitution and gathered from the provisions of the Constitution.'' of the Constitution.” (In the Zambian con text reference to (In the Zambian context reference to Section 1 must be read as a referent to Article 1 (3) of the Zambia Section 1 must be read as a referent to Article 1 (3) of the Zambia Constitution). Constitution). < , J29 J29 In the case of Zambia, the exceptional circumstances are those laws that In the case of Zambia, the exceptional circumstances are those laws that are set out in Article 20 (3). Under Article 20 (3) of the Constitution the are set out in Article 20 (3). Under Article 20 (3) of the Constitution the only only laws exempted are laws exempted are those those that provide restrictions that are that provide restrictions that are "reasonably required," for example: “reasonably required,” for example: (i) (i) In the interest of defence, public security, public order, public In the interest of defence, public security, public order, public morality or public health; or morality or public health; or (ii) (ii) For the purpose of protecting the reputations, rights and For the purpose of protecting the reputations, rights and freedoms of other persons, etc. freedoms of other persons, etc. It does not appear to me that Section 6 7 is reasonably required for those It does not appear to me that Section 67 is reasonably required for those purposes. Neither can it be said that it is reasonably required for purposes. Neither can it be said that it is reasonably required for imposing restrictions on public officers. imposing restrictions on public officers. As I earlier stated in this judgment, Section 67 offends against the As I earlier stated in this judgment, Section 67 offends against the Constitutional guarantee of presumption of innocence as well as that Constitutional guarantee of presumption of innocence as well as that which places the burden of proof of guilt upon the State. It requires an which places the burden of proof of guilt upon the State. It requires an accused person to prove lack of knowledge of the falsity of his statement, accused person to prove lack of knowledge of the falsity of his statement, report or rumour and to show that he took reasonable measures to verify report or rumour and to show that he took reasonable measures to verify the truthfulness of his statement, rumour or report. The general rule is the truthfulness of his statement, rumour or report. The general rule is the onus of proof remains on the State that in a criminal trial, that in a criminal trial, the onus of proof remains on the State throughout and does not shift to the defence. The Zambian Supreme throughout and does not shift to the defence. The Zambian Supreme Court's decision Court’s decision in MWEWA MURONO v. THE PEOPLE (2004) Z. R in MWEWA MURONO v. THE PEOPLE (2004) Z. R 207 is a case in point. 207 is a case in point. The presumption of The presumption of • innocence innocence • an is an IS entrenched constitutional right of an accused person. entrenched constitutional right of an accused person. It requires It requires C: C I I « ' • % J30 J30 that the prosecution bear the burden of proving all the elements of a that the prosecution bear the burden of proving all the elements of a criminal charge. A stipulation, such as is found in Section 67 which criminal charge. A stipulation, such as is found in Section 67 which relieves the prosecution of part of that burden could result in the relieves the prosecution of part of that burden could result in the conviction of an accused person despite the existence of a reasonable conviction of an accused person despite the existence of a reasonable doubt as to his or her guilt. Such a stipulation is in breach of the doubt as to his or her guilt. Such a stipulation is in breach of the presumption of innocence and therefore offends the Constitution. presumption of innocence and therefore offends the Constitution. Further, Further, liability for prosecution and conviction under Section 67 liability for prosecution and conviction under Section 67 appears to me not to be dependent upon any actual occurrence of public appears to me not to be dependent upon any actual occurrence of public fear or alarm or disturbance of public peace. fear or alarm or disturbance of public peace. It all depends on the It all depends on the State's perception of the possible impact the expression may have on the State’s perception of the possible impact the expression may have on the public and if the Court can be persuaded positively. The law is intended public and if the Court can be persuaded positively. The law is intended to forstall a danger, which is both remote and uncertain, arising out of to forstall a danger, which is both remote and uncertain, arising out of the "false news." the “false news.” In conclusion, I find and hold that Section 67 does not fit under Article In conclusion, I find and hold that Section 67 does not fit under Article 20 (3) of the Constitution. It goes beyond what is permissible under that 20 (3) of the Constitution. It goes beyond what is permissible under that clause. I, therefore, find that Section 67 does not pass the test of being clause. I, therefore, find that Section 67 does not pass the test of being "reasonably justifiable in a democratic society." It contravenes Article 20 “reasonably justifiable in a democratic society.” It contravenes Article 20 of the Constitution and is null and void, and therefore invalid for of the Constitution and is null and void, and therefore invalid for unconstitutionality. unconstitutionality. It It also follows follows also that that the the invalidity and invalidity and the the constitutional guarantee of constitutional guarantee of expression preclude freedom of freedom of expression preclude • the the prosecution of persons and the criminalization of alleged false statements prosecution of persons and the criminalization of alleged false statements under Section 6 7. under Section 67. J31 J31 Accordingly, a prosecution based on Section 67 of the Penal Code is itself Accordingly, a prosecution based on Section 67 of the Penal Code is itself inconsistent with the Constitutional guarantee and equally invalid. inconsistent with the Constitutional guarantee and equally invalid. Leave to appeal is granted. Leave to appeal is granted. Delivered in Open Court, at Lusaka, the 4 th day of Dece1nber, 2014. Delivered in Open Court, at Lusaka, the 4th day of December, 2014. I. C. T. Chall I. C. T. Chali JUDGE JUDGE