Defamation of the President of Zambia: Contextualising the Decriminalisation Debate

• DOI: 10.25159/2522-6800/9231
• Date: 01 December 2021
• Pages: 1-20
• Author: Christopher Phiri
• Published date: 01 December 2021

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/9231

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

#9231 | 20 pages

© Unisa Press 2022

Defamation of the President of Zambia:

Contextualising the Decriminalisation Debate

Christopher Phiri

https://orcid.org/0000-0002-7652-9854

University of Turku, Finland

cdphiri@hotmail.com

Abstract

The last two decades have seen a growing global movement towards

decriminalising defamation. Numerous calls have been made at various levels

for states to repeal all criminal defamation and ‘insult’ laws. Yet many states

continue to maintain such laws on the statute books. Zambia is a case in point.

This article focuses on the law that criminalises defamation of the President of

Zambia, which the authorities have continued to apply with vigour. Diverging

from extant judicial precedent upholding the constitutionality thereof, the article

argues that that law is unconstitutional and falls foul of international standards

on freedom of expression. The article culminates in a call for the

decriminalisation of defamation of the President.

Keywords: criminal defamation; decriminalisation; democratic society; freedom of

expression; President of Zambia

Phiri

2

Introduction

Enshrined in national constitutions, legislations (or statutes) and in a number of

international instruments,

1

freedom of expression is indissociable from democracy.

Freedom of political debate, in particular, is at the very core of the democracy which

many states, including Zambia,

2

have adopted as their preferred form of government.

3

This freedom is, however, subject to many restrictions. While some of those restrictions

are clearly justifiable, laws that criminalise peaceful expressions such as defamation and

‘insult’ are widely seen as unjustifiable. Many see the criminalisation of defamation,

particularly defamation involving public officials, as an overkill, their argument being

that well-tailored civil defamation laws could provide adequate protection against

unwarranted attacks upon reputation while upholding freedom of expression.

Most notable calls for the decriminalisation of defamation have been largely general in

nature and in scope. However, this article focuses on one type of defamation that is

criminalised in Zambia: defamation of the President. The article considers whether,

when examined in light of various decriminalisation calls and applicable constitutional

provisions, section 69 of the Penal Code 1931, which criminalises defamation of the

President, specifically, ought to be repealed. This question is timely and important.

Unlike in some countries where extant criminal defamation laws are essentially dead

letters, section 69 is actively applied in Zambia.

Moreover, although the Supreme Court of Zambia upheld the constitutionality of

section 69 in 1996, the court lacked the benefit of recent developments on the

international standards when making its decision at that time. Accordingly, the next

section of this article provides an overview of the decriminalisation debate from an

international perspective. The two sections that follow thereafter respectively analyse

the tenor of section 69 and its constitutionality in light of that debate. And the fifth

section concludes.

The Movement Towards Decriminalisation of Defamation

The last two decades have seen a growing global movement towards decriminalising

defamation. In 2000, for example, the UN Special Rapporteur on Freedom of Opinion

and Expression, the OSCE Representative on Freedom of the Media, and the OAS

Special Rapporteur on Freedom of Expression jointly called on states to consider

1

Eg Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), Article

10; International Covenant on Civil and Political Rights 1966 (ICCPR), Article 19; American

Convention on Human Rights 1969 (ACHR), Article 13; African Charter on Human and Peoples'

Rights 1981, Article 9.

2

Co nstitution of Zambia 1991, as amended by Act no 2 of 2016, Article 4(3).

3

S ee Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986) para 42 (holding that ‘freedom of political

debate is at the very core of the concept of a democratic society’).