High Court ruling on “publishing false news” a victory for freedom of expression

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Panos Institute Southern Africa (PSAf) says it is delighted about the Lusaka High Court decision to free human rights defenders who were being charged for “publishing false news”.

On Thursday, the High Court ruled as unconstitutional the charges of “publishing false news” that had been levelled against Foundation for Democratic Process (FODEP) Executive Director McDonald Chipenzi and editors of the Daily Nation newspaper.

Panos director Lilian Kiefer, says the ruling is a great victory for freedom of expression in Zambia, ‘and we hope it will set an example for other countries that continue to suppress dissent. PSAf believes this ruling is a step towards creating an environment where different stakeholders and the media can freely criticise those in authority without fear of being persecuted through prosecution.’

PSAf said the judgement is is a landmark ruling which they hope will send the right message to those who are in the habit of stifling free expression.

On Thursday morning, the Judge Chali delivered Judgment on the Constitutionality of Section 67 of the Penal Code Chapter 87, Volume 7. He said Section 67 contravened Article 20 of the Constitution and was null and void because the law was intended to forestall a danger which was both remote and uncertain arising out of the said section.

“I find and hold that Section 67 does not fit under Article 20 (3) of the Constitution, it goes beyond what is permissible under that clause, I therefore find that section 67 does not pass the test of being reasonably justifiable in a democratic society,” he said.

Justice Chali said the section was established in 1938 and amended in 1958 before independence, making it an archaic law as Zambia’s Constitution provided for the supremacy of the constitution under Article 1 (3).

The prosecution based on section 67 of the Penal Code was inconsistent with the Constitutional guarantee and equally invalid and therefore invalid for unconstitutionality.

“It follows also that the invalidity and the constitutional guarantee of freedom of expression preclude the prosecution of persons and the criminalisation of alleged false statements under section 67,” Judge Chali said.

He said the danger of applying section 67 in the present form was that it prohibited against publication of false information not only affected those caught and prosecuted but who refrained from saying what they want to say for fear that they might be caught.

The Panos director said this is not just a victory for Mr. Chipenzi and the Daily Nation team, ‘but a victory for many Zambians who have been charged, some still appearing in court, or indeed those to be charged, for the same offence. We believe this judgment is historical and will positively affect the present and future generations’.

She reiterated that free expression is one of the key ingredients for any democracy to flourish, and that, where freedom of expression is suppressed, democracy suffers.

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