By Dr. O’Brien Kaaba
On 23rd December 2022, President Hakainde Hichilema assented to the Penal Code (Amendment) Bill No 25 of 2022 which repeals section 69 of the Penal Code and effectively abolishes the crime of defaming the President.
The provision was introduced by the Kaunda regime soon after independence to stave off increasing criticism from Harry Mwaanga Nkumbula’s ANC and almost immediately led to the arrest, conviction and sentencing to a term of imprisonment of Mungoni Liso, the ANC secretary general. Ever since, a litany of citizens has been jailed for the offence.
The abolition is a momentous development, considering that all previous presidents rationalised the need for this law, and more importantly, the Judiciary as guardian of constitutionalism, abdicated its responsibility and joined the retinue of praise signers, churning out dangerous jurisprudence that elevated the president above constitutional limitation.
I argue in this article that the decision by the Hichilema government to abolish the crime exposes how defective and incompetent the Zambian judiciary has been at holding the Executive in check as the abolition now shows how defective the collective ‘jurisprudence’ of the Zambian judiciary has been. Instead of declaring the provision unconstitutional, as several common law jurisdictions did and for good cause, the Zambian Courts abandoned all sense of constitutional adjudication and crafted an intellectually impoverished jurisprudence insulating the president from scrutiny, criticism and irreverent language.
In explaining the role of the judiciary in the destruction of constitutionalism in Africa, human rights lawyer Chidi Odinkalu asserted: “The first question of the constitutions and Bills of Rights in common law Africa was destroyed not so much by the intolerance of the executive as by the enthusiastic abdication of judicial responsibilities by the persons and institutions mandated under those constitutions to perform them, coupled with a readiness to share across national borders the wrong models and bad precedents.” This rings true of the Zambian judiciary, as demonstrated by their handling of the constitutionality of section 69 of the Penal Code.
The courts have often vacated their role as a co-arm of the state, enforcer of constitutional norms and reduced themselves into presidential soothsayers and sycophants. In the case of M’membe and Mwape v. The People (1995 – 1997) ZR 118 (SC) challenging the constitutionality of section 69, for example, the Supreme Court readily accepted mere assumption and wild speculation by the lower court that the trial judge “was not in error when he considered that section 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” and went further to rationalise: “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’.” As if this is not enough, the Court went on to sing: “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 art 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 sad consequence of such decisions has been to elevate the President, from being a servant of the people, to being an elected emperor, with little effective means of keeping him or her in check.
This is by no means an isolated case. It is the entrenched culture of the judiciary, that has manifested itself in several other situations. In many cases involving citizens insulting or crudely criticizing leaders, the Zambian courts tend to always decided in favour of leaders, throwing away the dictates of liberal democracy and seeking refuse in some nebulous cultural beliefs.
Two examples can be given here. The first is the case of Attorney General v Roy Clark (2008) 1 ZR 38, involving the deportation of Roy Clark, who had written a satire in the Post newspaper, depicting the figure of an elephant he named Muwelewele, described in un-flattery language, taken by some to refer to President Levy Mwanawasa.
The Supreme Court was not pleased with the use of such language, and stated in part: “What we ourselves find irritating and offending are the reference to the concerned person’s physical appearances in crude language.” The Supreme Court considered the use of crude language by Clark to be “un-Zambian,” suggesting that this is something alien to the Zambian culture.
It stated: “The Respondent is also an old man, who has insulated himself from the realities of the Zambian cultural environment and is impervious to the cultural values and norms of the Zambian people, who, according to the learned trial Judge, the Respondent has lived for over forty years.” The Court went further to say: “In Zambia, one can criticise or poke fun at the Head of State and government leaders or indeed elders but this must be done in felicitous language and not in the crude language the Respondent used. We have no doubt that in every other country you cannot say and write things using words and expressions that are not in consonance with the cultural values and norms of the people of that country.”
Another case involving irreverent language is that of Fred M’membe and Bright Mwape v The Speaker of the National Assembly, the Commissioner of Prisons and the Attorney General. The applicants in this case allegedly used irreverent language in criticising ministers and parliamentarians in the National Assembly, through newspaper articles. Fred M’membe was alleged to have referred to one parliamentarian as follows: “Ernest Mwansa’s underwear is an imitation” and “Ernest Mwansa must shut up.”
The High Court held that the use of such language was contemptuous, especially when used when referring to an adult. The justification, as in the other case, was that such language offends Zambian culture.
The judge stated: “As a Zambian myself, I find it to be insulting and abusive language in Zambian society for anyone to refer to underpants of a grown-up man or woman. Such language degrades, dishonours, and reduces the respectability of the person referred to by the term. Similarly, telling an honourable member of parliament and a minister to shut up is humiliating, though on a lesser degree than the mention of his underpants.”
The claims by judges in these cases are not based on truth or any verifiable facts. There is no Zambian language that does not contain insults. For whom are those insults intended? Just for ordinary mortals but not leaders? There is no evidence that African or Zambian language forbids use of irreverent language on leaders. In many traditional societies, leaders were the target of the wrath of society and often recipients of crude scathing criticism.
The late Nigerian lawyer and political scientist, Claude Ake argued that in many traditional African systems, accountability was stricter than even in modern Western societies and chiefs were sternly criticised and insulted: “Chiefs were answerable not only for their own actions but for natural catastrophes such as famine, epidemics, floods, and drought. In the event of such disasters, Chiefs could be required to go into exile or “asked to die.”
Perhaps a better known demonstration of democracy in traditional African societies is to be found in Nelson Mandela’s autobiography (“Long Walk to Freedom”). Mandela was raised by his uncle who was a chief/regent.
In describing how decisions were made, Mandela notes that no conclusion was forced upon people but instead all the people were heard, regardless of how stern their language was, and a decision was taken together. Mandela narrates how this was done: “Everyone who wanted to speak did so. It was democracy in its purest form.
There may have been a hierarchy of importance among the speakers, but everyone was heard, chief and subject, warrior and medicine man, shopkeeper and farmer, landowner and labourer. People spoke without interruption and the meetings lasted many hours.
At first, I was astonished by the vehemence- and candour – with which people criticised the regent. He was not above criticism – in fact, he was often the principal target of it. But no matter how flagrant the charge, the regent simply listened, not defending himself, showing no emotion at all.” (Emphasises the author).
The same can be said about many Zambian traditional societies. Use of crude or lewd language was not generally proscribed and on some occasions was in fact encouraged.
Dale and Smith, for example, in describing the Ila culture indicated that there were “occasions when lewd songs are not only permitted but are regarded as essential to the ritual…”
In fact, in many Zambian cultures and beyond, insults were institutionalised, often accompanying major rites and developments in life such as birth, puberty, marriage, ascension to the throne and other important social events. Moses Nii-Dortey and Edward Nanbigne have demonstrated that “nearly all cultures have contexts that elevate verbal and non-verbal insults to a ritual and institutional necessities.” To assert, as Zambian courts have, that insults are not part of Zambian or African culture, or that they would lower the status of the President, is simply not true.
What then is the basis of the decisions made by judges if they cannot be based on Zambian/African culture? Haynie has argued that such jurisprudence emanates from a judicial culture of timidity and sycophancy, in which judges see themselves as having a role in protecting the reputation of those in power.
In such circumstances, says Haynie, “judging is not black and white- judging is a process by which the grey is given the appearance of black and white.” Judges in such situations simply elevate their political sympathies to the status of law.
Such decisions damage the capacity of the judiciary to hold leaders accountable. By elevating leaders beyond the reach of ordinary people through crude criticism, leaders are divinised and insulated from their own people.
This should not be the role of a judge in a democracy. As former South African Deputy Chief Justice, Dikang Moseneke remarked, “a good judge does not suck up to authority or to anyone.”
In fact such crude language has a role in fostering constitutionalism and enriching democracy. Insults may often be the only tool available to the citizens to speak truth to power and in that sense have a powerful role in advancing constitutionalism and democracy.
As stated by Albie Sachs, a retired judge of the South African Constitutional Court: “A society that takes itself too seriously risks bottling up its tensions and treating every example of irreverence as a threat to its existence. Humour is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. It promotes diversity. It enables a multitude of discontents to be expressed in a myriad of spontaneous ways. It is an elixir of constitutional health.”
Instead of kowtowing to the Executive, the judiciary should be inward looking and cure its lack of accountability to the citizens in the performance of its duties, often characterised by inefficiency in resolution of disputes and thinly reasoned decisions. It should similarly abandon outdated and self-serving conceptions of contempt of court based merely on commenting on matters before court or the often abused ‘crime’ of scandalising the court.
The author is a lecturer in the School of Law, University of Zambia