Zambia: Challenging the enforcement of the offence of defamation of the President

Salc : Anneke Meerkotter

The offence of defaming the President has been used far more in Zambia over the past decade than in many other countries. This is a great cause of concern and requires clear statements from the courts which would narrow the application of the offence and emphasise the importance of criticism in a democratic country.

The charge of defamation of the president has been used repeatedly in Zambia to stifle dissent, this includes against journalists (e.g. Fred M’member, February 2015), business men (e.g Sanford Mwale, 2013), opposition politicians (e.g. Frank Bwalya, 2014), and ordinary citizens (e.g. Darius Mukuka, 2010). Many times, the charges are brought in small courts far from Lusaka where there is little to no press coverage, and where it is difficult to maintain any sort of legal defence.  Fresher Siwale was charged with the offence of defamation of the President in May 2018 after comments he made on Muvi TV. In July 2017, Zambia police arrested a student, Edward Makayi, for criticising the President on Facebook. In January 2018, the Mongu Magistrates Court convicted and sentenced a medical doctor, Dr Kwalela Kafunya, to seven years’ imprisonment for defamation of the President. In October 2018, Dr Austin Mbozi, a lecturer from the University of Zambia was arrested and charged with defamation of the President after he wrote an opinion piece critical of the government. In May 2019, Sean Tembo was charged with defamation of the President.

Section 69 of the Penal Code provides:

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

There are a number of concerns with this offence. The offence of defamation of the President does not contain the explicit defences that exist in the offence of criminal defamation. Whilst the offence of defamation does not include defamation orally or by gesture, the offence of defamation of the President, does extend to these acts. This offence is archaic and does not fit in a democracy where a President is elected and as a public officer should be willing to face criticism. Public figures ought to be required to tolerate a greater degree of criticism. The sanction is further so severe as to inhibit freedom of expression.

SALC supports litigation which seeks to narrow the application of this offence.