Zambia: Defending human rights defenders’ right to protest

Salc : Anneke Meerkotter

On 29 September 2017, Laura Miti, Sean Tembo, Fumba Chama, Bornwell Mwewa, Lewis Mwape and Mika Mwambazi were arrested in terms of section 127 of the Penal Code which provides that: “Everyone who disobeys any order, warrant or command duly made, issued or given by any court, officer or person acting in any public capacity and duly authorised in that behalf, is guilty of a misdemeanour and is liable, unless any other penalty or mode of proceeding is expressly prescribed in respect of such disobedience, to imprisonment for two years.”

The 6 activists had peacefully protested the acquisition of 42 fire trucks procured by the government at a cost of 42 million USD. The activists were amongst other Zambians who had gathered outside parliament during budget presentation to demand accountability on what they felt was misuse of public funds.

In their submissions after the prosecution had presented its case, the activists argued that the offence they had been charged with was a colonial offence which was recognised to be overbroad, and has been amended in a number of former colonies through the addition of explicit reference to a “lawful order” and the defence of “lawful excuse”. The primary concern with section 127 is its broad framing:

  • It relates to “any order, warrant or command duly made” but does not define what “duly” means;
  • It makes it an offence to disobey the order of any person “acting in any public capacity” even if the person who is alleged to have disobeyed the order was not aware of the public capacity of the person or his/her duty to obey that person’s orders;
  • The penalty is for 2 years’ imprisonment; and
  • It amounts to a person being found guilty of conduct which might not have been an offence at the time.

Given these concerns, it was submitted that the offence had to be interpreted narrowly and that, to pass constitutional muster, a charge under this offence had to be specific and disclose an offence known in law.  The activists were acquitted by Magistrate Mwaka Chigali Mikalile in the Lusaka Subordinate Court on 21 December 2018.

Ruling