Friday, March 29, 2024

Freedom of Expression

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The Freedom Statue in Lusaka
The Freedom Statue in Lusaka

On the 28th June 2013, I attended a symposium under the auspices of the Zambia Land Alliance. Mr. Goodwell Lungu, Director of Transparency International Zambia paused a question which struck me somewhat. I had a crisis of my own!!! His question was simply this:

“How many people have read the Constitutional Bill of Rights and understand them fully”?

This was terrible. Although I have read the constitution of Zambia many times, I have not really read the provisions in the Bill of Rights to fully appreciate what they mean and their implications. Over the ensuing weeks and months after that episode of self introspection, I realised that there was a real need to address this knowledge deficit.

In this segment of “Your Rights”, I shall endeavour to explore the thorny and sometimes explosive issue of Freedom of expression.

What the constitution says

Freedom of expression is one of the fundamental rights guaranteed by the Zambian Constitution under Article 20. The aforementioned Article 20 (1) provides thus:

Except with his own consent, a person shall not be hindered in Protection of the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.”

The above provision in the Zambia Constitution is all encompassing and guarantees the freedom of the individual to hold opinions and communicate those opinions without interference.Since the constitution is the fundamental law of the land, Article 1(3) of the Zambian Constitution entrenches the Supremacy of the Constitution by providing thus:

“This Constitution is the supreme law of Zambia and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

Absolute vs Subjective rights

The discourse which normally presents difficulties is with regard to the application of other laws which have an impact on the proper implementation of Article 20 (1) of the Constitution. It is often argued that Human Rights are not absolute. This postulation is not without justification.

It is an established principle of International Law, that some rights are absolute, while others are subject to other considerations for them to be enjoyed. In this discourse, limiting or restricting Human Rights means doing something that prevents someone from fully enjoying a particular right. For example, if you lock someone in a room or cell you are limiting their right to liberty; they cannot fully enjoy the freedom to move about as they wish. Although a right to liberty and freedom is a human right, this right is not absolute as it can be denied on grounds of effecting a lawful arrest or as the case may be, imprisonment.

It is worth of note that there are a small number of human rights that cannot be balanced against the rights of others, or the interests of the wider community. These are what are referred to as absolute rights. These rights can never be limited or restricted, whatever the circumstances even in a state of war or emergency.

One example of an absolute right is the right not to be tortured or treated in an inhuman or degrading way. There can never be any justification under the Human Rights dispensation to torture or treat someone in an inhuman or degrading way, regardless of the circumstances.

With regard to Freedom of Expression though, this is one of the Human Rights which is not absolute as it is subject to restrictions under some other laws or public interest considerations. However, in the Zambian case, the Constitution is categorical on the issue of other considerations which can affect the enjoyment of the right to freedom of expression.

Conditions under which Freedom of Expression can be curtailed

The Constitution as the Supreme Law of the Land provides for circumstances under which the freedom of expression may be curtailed. Article 20 (2) and (3) of the Zambian Constitution provides thus:

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision-

a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or
b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or the registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television; or
c) that imposes restrictions upon public officers; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.”

 

The right to Freedom of Expression is a qualified right. This means that the right can be restricted under more general circumstances when balanced against the rights of others or the interests of the wider community. In Human Rights discourse, this is a question of proportionality. Article 20(2) and (3) provides for circumstances under which the freedoms of expression as explicitly provided under the Constitution may be curtailed. For example, there is provided circumstances of national security, public order, public health and public morality.

Conclusion

The circumstances under which freedom or expression may be curtailed are so broad as to make the right to freedom of expression non-existent. This therefore requires discretion, proportionality and common sense. It is opined that the broad spectrum of circumstances under which freedom of expression may be curtailed make it very easy for people tasked with the responsibility of exercising discretion to use their own interests, whims and caprices as a benchmark for allowing for divergent discourse.

Therefore, there is a need to have a strong institutional framework to protect and guarantee the freedom of expression within the spirit of the constitution. As a rule of statutory interpretation, nocitur asociis requires that a statute be understood in the context and not by particular provisions. Article 20(1) is an empowering provision for proponents of freedom of expression. However, the provisions in Article 20(2) and (3) take away the freedoms provided for under Article 20 (1). Therefore, it is the responsibility of those tasked with the exercise of discretion to apply the provisions of Article 20(2) and (3) by application of the principle of proportionality. A proportionate action is one that is reasonable and not excessive in the circumstances. Freedom of expression?

By Abraham Miti

5 COMMENTS

  1. That freedom doesnt exist anywhere in the world, only an excuse people use when it suits them, both you and i know that freedom comes with power and money surrounded by friends with the same measure of power, otherwise, in the real practical world it doesnt exist.

    • Well, very interesting reading indeed. This peace of legislation needs looking at seriously. The fact that it is a man made document ,opens up possibilities for it to be tweaked to suit the environment in which it operates. For instance the section which says ,and I quote,” that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned”, needs to be changed by replacing the phrase “other persons” with the phrase “private persons not politicians” to distinguish them from public persons(politicians) who should be subject to public scrutiny in return for the favours of electing them to political positions.

      Now that there are a lot of loopholes subject to abuse in our constitution,we need…

  2. This article appears on an online media.

    It has a provision to express opinion on news items, articles and contributions of fellow bloggers.

    And when one expresses an opinion, online media says, Your comment is awaiting moderation.

    Expression of opinion is moderated by one or two editors/proprietors of this website.

    Does this analogy not fit the Constitution that guarantees freedom of expression.

    Lord is savior

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