Tongue Tied: How Zambia’s Defamation Laws Silence Critics

sata-profileSeated behind his desk in Lusaka’s far-flung industrial quarter, Daily Nation editor and publisher Richard Sakala looks weary, stroking his brow as his eyes jump from the television to his cell phones, and over to various staff members as they enter his office to ask him a question, show him an editorial cartoon, or get his opinion on financials.

“We have three cases with (President Michael Sata) in which he says we’ve defamed him,” Sakala says. “The main thrust is we accused the president of defending individuals who defrauded the government of K14 billion.”

The government is pursuing Daily Nation via the civil courts. All together, damages sought are US$3 million, and Sakala says the drama has sent an ominous message to the paper’s advertisers. Though he admits his outlet is too fringe to attract major accounts like Airtel or MTN, he does say the paper has lost clients as a result of the lawsuits. The loss of revenue translates into low salaries for editorial staff, as well as shortfalls in their training and competence.

“Basically,” Sakala says, “they just want to intimidate us, and also to try and cripple us financially, if they can. They realize there’s no way we can get K500 million (roughly the damages sought per case) from our operation.”

And yet, onerous as the civil cases may be, Sata’s Patriotic Front (PF) administration has chosen not to prosecute The Daily Nation under section 69 of Zambia’s Penal Code, through which defamation of the president and other notables can warrant jail time.

Citing violation of the country’s presidential defamation law, the police have arrested the likes of Andrew Banda, son of former President Rupiah Banda, and United Party for National Development leader Hakainde Hichilema – though charges against both were later dropped. Outside media and political circles, Peter Mweete was sentenced to six months hard labour after he was convicted of defaming the president at a bar. Meanwhile, Sakala is joined by Zambian Watchdog editor Lloyd Himaambo, academic Choolwe Beyani, and lawyer Robert Amsterdam.

Mweete notwithstanding, ordinary Zambians are usually left alone, says Herbert Macha, national director for Media Institute of Southern Africa, Zambia (MISA Zambia). “The most obvious target is the media, but also the opposition. The opposition can be made to shut up by being dragged to court.”

A history of intolerance

While some Zambians are disillusioned to see the Sata administration using defamation laws to silence its critics – the PF did campaign on a platform of enhanced freedoms – former presidents have indulged in the same tactics.

Banda, who governed under the Movement for Multipart Democracy (MMD) banner, pressed charges against private individuals Meki Wali and Collins Tembo for insulting him in public. The late Levy Mwanawasa, also of MMD, charged editor Frank M’membe after The Post ran a story in which an opposition member was quoted calling the president ‘a cabbage,’ referring to Mwanawasa’s speech impediment he had suffered following a car accident. While that case was dropped after the member apologized, Mwanawasa also temporarily imprisoned staff at The People, and he pressed charges against members of the opposition, including Sata and current Vice President Guy Scott. Meanwhile, former MMD president Frederick Chiluba, to whom Sakala was press aide, went after The Post and opposition members as well.

Kenneth Kaunda’s one-party state was less likely to use the law. According to Sakala, who was editor of the Zambian Mirror during Kaunda’s reign, he was never threatened with arrest or detention, but rather was expected to endure the odd intimidating summons to party headquarters.

“Kaunda kept these laws in the Penal Code without applying them,” adds Macha. “He had the dictatorship and the state machinery. The laws were dormant. How would you criticize the president then? It was a one-party system. It was unthinkable.”

Emerging from the Kaunda years and entering the Chiluba era, many Zambians held onto a sort of state-programmed reverence for the office of the presidency, says Macha. Justifications for maintaining defamation laws were easily made, and because they’re largely deployed in the political circles of media and opposition, relatively few people were directly compromised by their usage.

“As we went on,” he continues, “we discovered that civil society organizations associated with liberties and freedoms were beginning to realize that, okay, even if it is the president, we should be able to criticize his policies without defaming him.”

Is Sata the worst offender?

Statistics for convictions, acquittals, and open cases are difficult to find, but there’s a general feeling in opposition and certain civil society circles that Sata favours the laws, both civil and criminal, more than his predecessors. Presidential spokesperson George Chellah and Senior Private Secretary to the Vice President Robert Kalamata did not respond to multiple interview requests for this story. PF Secretary General and Justice Minister Wynter Kabimba declined to be interviewed.

“Sata is a very sensitive person to his reputation,” Macha says. “He’s gone in the records of leaders who have really taken the newspapers and reporters to court more than anyone else.”

Opposition politicians and media point to a chill around the issue, which they say did not exist prior to Sata’s election. The Coalition for the Defence of Democratic Rights, a mosaic of opposition parties and civil society groups, deferred questions to their lawyer – the aforementioned Robert Amsterdam – but the group’s controversial January 2013 report to the Commonwealth Secretariat highlighted criminal defamation in its appeal to trigger a Commonwealth investigation. The University of Zambia’s School of Law, meanwhile, declined interview requests made in person, over the phone, and in writing, though no reason was provided as to why.

At the same time, Reporters without Borders considers issues like criminal and abusive civil defamation when constructing its annual press freedom index, and it ranked Zambia 72 of 179 in 2013, up from 86 the year before, and 104 at the beginning of the MMD’s post-Chiluba era.

The SADC and the movement to repeal

Among neighbours in the South African Development Community, Zambia’s record isn’t especially noteworthy. In Angola, defamation is considered an issue of state security, and when it involves the president, truth is not a defence. In Swaziland, a patchwork of laws, one of which dates back to 1882, make defamation a criminal affair with commensurate fines and jail sentences. In Zimbabwe, the Public Order and Security Act criminalizes criticism of the president, and parliamentarians have their own, similar legislation. Meanwhile, in South Africa, a proposed insults law is making headlines.

More globally, the state of California only decriminalized its defamation laws in 1991, the year Zambia’s third republic was born, and in many instances in the United States, the truth is not necessarily an adequate defence in civil court. Meanwhile, in 2009, Canadian Prime Minister Stephen Harper drew heavy criticism for trying to silence the Liberal opposition with a $3.5 million libel suit.

However, Zambia’s criminal defamation law is at loggerheads with its constitution and numerous international human rights organs it’s signed, including the Universal Declaration of Human Rights, the Covenant on Civil and Political Rights, and the African Commission on Human and Peoples’ Rights.

“For me personally, what I think about criminal defamation cases is that really they ought to be out of statute books in the first place,” says James Banda, president of the Law Association of Zambia (LAZ). “Strictly speaking, they should be left in the civil world.”

As an organization, LAZ is working on an opinion paper regarding the criminal law. Banda says he doesn’t personally think the civil law is abused, providing due process is followed.

“The point should be made that defamation laws are there to secure people’s reputation and you cannot have a situation where a newspaper or a media body writes something about you which is obviously wrong and you’ve got no recourse to defence,” adds Banda. “That’s obviously wrong.”

Banda does see a role for LAZ in lobbying for the repeal of the criminal law, and MISA Zambia has pursued media law reform for years. The latter group convenes with civil society organizations and government agencies and representatives. Certainly, Zambian governments have a history of responding to internal and external pressures. Kaunda relinquished his one-party state as a result of international and civic pressure, and Chiluba backed off a constitutional reform endeavour to allow himself a third term as president.

But the issue of criminal defamation doesn’t seem to get much traction outside politics and media, and there are those who note that any campaign to repeal the law risks running aground on the culture of hyperbole and insults practiced by many journalists and politicians. Freedom of speech – or any basic freedom – was not at question in the 2009 and 2013 Afrobarometer Surveys, whereas unemployment was. On that issue, the PF was seen as outperforming the MMD, which may explain the government’s quick reaction to the Konkola Copper Mines May 2013 announcement to downsize 2,000 jobs – an announcement the company withdrew after meeting with Sata’s administration.

“We will also seek the support of citizens,” Macha says, “but first we will have to sensitize them. Slowly, we are achieving some of the reforms.”

But too slowly for Sakala. He has no faith in a successful campaign to repeal, and in a bid to protect his staff from civil litigation or criminal prosecution, he’s removed all bylines from his newspaper. Even still, he insists, intimidation remains.

“It’s ever present,” he says. “That’s a fear one has all the time.”

Paul Carlucci is a Lusaka-based freelance journalist. He contributes often to Think Africa Press and is the author of The Secret Life of Fission, out this fall through Canada’s Oberon Press. Follow him on twitter @paulcarlucci

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