The Perspective, by Edward Bwalya Phiri: archaic and oppressive laws; a Relic of colonial days The Mast Online – themastonline.com

A French Philosopher, Montesquieu once posited that, There is no greater tyranny than that which is perpetrated under the shield of law and in the name of justice. And American lawyer and former POTUS Thomas Jefferson once opined that, The minority [the weak in society] possess equal rights, which equal law must protect, and to violate would be oppression.

It is unfortunate that, to date, we still have laws that segregate between the frail and the mighty in society and that there are different laws for each category. On The Perspective today, consideration is on oppressive laws. According to the renowned English playwright, William Shakespeare, when there is, One law for the Lion and Ox is oppression. Laws must be the same and every one must be subject to it.

From the onset, it must be appreciated that the Zambian legal system is one bequeathed to her by the former colonial master. This is a system that segregated the citizenry based on race the majority white settlers and the minority indigenous black people. The laws not only sought to protect the governors, but also promoted white supremacy.

Today, Zambia is a sovereign country governed by the indigenous black people. However, nothing much has changed canonically. Though the whites no longer govern, its now the governors who are protected by the law, in what may be termed as the Black governors superiority. The law protects so much the governors than the governed. And no one can justify why our brothers would be oppressed by our own black governors in the name of justice.

It actually defies any logic that the same ills that the freedom fighters fought against during the liberation struggle still prevail 57 years after attaining independence. Successive governments, starting from the United National Independence Party [UNIP], to the Patriotic Front [PF], have not sought to change the status quo.Despite lamenting about the oppressive laws whilst in opposition, when politicians form government they go quiet. The reason is simple; its because the law serves them better in government than in opposition. Steven Erikson postulated that, Laws decide which form of oppression is allowed, Lord. And because of that, those laws are servants of those in power, for whom oppression is given as a right over those who have little or no power. Unfortunately, when politicians are out of government, they still suffer the same fate they had power to redefine.There are a number of oppressive, colonial laws that need to be repealed. Apart from the Public Order Act, the other most oppressive laws are provisions from the Penal Code Act, Cap. 87 of the Laws of Zambia. And among them are sections 69, 53-57, 191-197.

For today, interest is so much on section 69 of the Penal Code, which provides for the Defamation of the President crime and it carries a custodial sentence of up to three years. This criminal charge has been abused by the governors to stifle dissent among the people. This law is not only oppressive but archaic. A defamation claim is personal in nature because it deals with ones reputation. It is therefore important that the injured person takes action, as opposed to a third party lodging a complaint on ones behalf.

The Republican Constitution coffers judicial immunity upon the President or any person performing Presidential functions. Article 98 of the Constitution provides that, (1) A person shall not institute or continue civil proceedings against the President or a person performing executive functions, as provided in Article 109, in respect of anything done or omitted to be done by the President or that person in their private capacity during the tenure of office as President. (2) The President shall not, in the Presidents private capacity during the tenure of office as President, institute or continue civil proceedings against a person.

There is an old adage which states that what is good for the goose is good for the gander. So if the President cannot be sued, neither should he sue. And none should take action on his behalf, especially on matters that may be of personal nature.

It is actually laughable that we can have such laws in modern times. This writer is opposed to the idea of criminal liability to alleged defamation matters, because it is vindictive in nature. And most complaints are lodged by political operatives, for partisan interests. While criminal defamation is utterly punitive, civil defamation on the other hand is aimed at compensating the injured party. I shall belabour on this notion in subsequent publications.

Most progressive societies have done away with such mundane laws, which only serve the interests of the political actors at the expense of the governors. In the landmark ruling in the case of New York Times v Sullivan, 376 U.S. 254 (1964), The Court made a number of declarations as regards to defamation matters involving government officials. The court ruled that, Public officials must have a thick skin. If public officials are allowed to successfully sue for any criticism against public function; i) There will not be acknowledging that they are servants of the people, (ii) That there will be an assortment on the freedom of expression matters of public interest.

In the foregoing case, a government official sued a newspaper company. The court further held that, A newspaper cannot be held liable for making false defamatory statements about the official conduct of a public official, unless the statements were made with actual malice. Conclusively, it was said that debate on public issues must be uninhibited, robust, and wide-open and that it may include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. Public officials must therefore accept criticism, unlike hiding in archaic laws.

A decade later, the court made another decision in Gertz v Robert Welch Inc, 418 U.S. 323 (1974), where it was said that, An individual who decides to seek government office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer scrutiny than might otherwise be the case. Those classified as public figures stand in a similar position. Even if the foregoing generalities do not obtain in every instance, the communications media are entiltled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from falsehoods concerning them.

Though the Zambia caselaw on this matter may be slightly different from the U.S, it still respects the freedom of expression. In the Resident Doctor Association v Attorney General (2003) Z.R. 88, it was held among other things that, The right of free speechis not only fundamental, but central to the concept and ideal of democracy.And in the earlier case of Michael Chilufya Sata v Post Newspaper and others 1993/HP/1395, former Chief Justice Ngulube said that, Let me make it clear that I fully endorse the view that some recognition ought to be given to the constitutional provisions in Article 20 and I accept that impersonal criticism of public conduct leading to injury to official reputation shall generally not attract liability if there is no actual malice. Free speech must be encourage for democracy to thrive.

In concluding, allow me to borrow Justice William J. Brennan Jr.s words who opined that, debate on public issues should be uninhibited, robust and wide open and [further that] vehement criticism and even mistakes are part of the price a democratic society pay for freedom. For today I will end here; its Au revoir, from EBP.For comments: elbardogma@yahoo.com

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The Perspective, by Edward Bwalya Phiri: archaic and oppressive laws; a Relic of colonial days The Mast Online - themastonline.com