Johannesburg, 19 January 2022 – On 18 January 2022, the Kitwe Subordinate Court was due to continue the trial of youth activist Lawrence Kasonde. Kasonde was arrested on 24 November 2020 for allegedly defaming former President Edgar Lungu. Instead, the prosecution applied for the accused to be discharged per section 88 of the Criminal Procedure Code. Prior to the State’s decision to withdraw the case, the trial had been postponed no less than eight times, either because the magistrate or State’s witnesses were unavailable.
“Whilst we welcome the prosecution’s decision to withdraw the charges against Mr Kasonde, this decision comes a year too late. In the process, Mr Kasonde has suffered irreparable harm,” said Anneke Meerkotter from the Southern Africa Litigation Centre (SALC), which supported the case.
“The charge of defamation of the President is frequently used to stifle dissent in Zambia. Often, charges are brought in subordinate courts far from Lusaka where there is little to no press coverage and where the accused’s fair trial rights are often ignored,” said Meerkotter. “The result is that anyone charged with expression-related offences often spends up to two years navigating the criminal justice system, at great financial, personal and reputational cost.”
“Since the current President of Zambia has himself frequently been harassed under similar free speech-related offences, we trust that the State will urgently review the Penal Code and repeal those offences which violate the right to freedom of expression. We also urge the State to take steps to end the ongoing prosecution of the many other activists who face similar charges.”
Mr Kasonde was represented by Mr Daniel S. Libati, a Zambian human rights lawyer.
In Zambia, section 69 was introduced in the Penal Code by the Penal Code (Amendment) Act, 6 of 1965 – which was adopted by Parliament soon after independence from Britain.
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.”
Defences such as truth, good faith and public interest are not explicitly provided for in section 69. The Supreme Court has, however, in the past noted that legitimate criticism could be a defence.
Heads of State are elected to the position on a periodical basis in democratic countries. For the elections to be free and fair, it also requires that people can effectively criticise the incumbent President’s actions. The offence cannot accordingly be justifiable in modern democracies. For this reason, many countries have taken steps to repeal similar offences or to at least limit prosecution to cases of severe insult, which require the permission of the Director of Public Prosecution to institute.