LUSAKA High Court judge-in-charge Isaac Chali has discharged Foundation for Democratic Process (FODEP) executive director MacDonald Chipenzi and Daily Nation owner Richard Sakala from criminal prosecutions after declaring their charge sheet invalid and unconstitutional.
Mr Chipenzi, Mr Sakala and Daily Nation production editor Simon Mwanza were charged with one count of publishing false news with intent to cause fear and alarm to the public contrary to Section 67 (1) of the Penal Code.
The trio, who pleaded not guilty before Lusaka magistrate Lameck Mwale last year, applied to the High Court for determination of the legality or constitutionality of Section 67 which criminalises publication of false news.
Delivering judgement yesterday, Mr Justice Chali said Section 67 contravenes Article 20 of the Constitution which guarantees freedom of expression.
“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.
Mr Chali said Section 67 contravenes Article 20 of the constitution and is null and void, and therefore invalid for unconstitutionality.
He said 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.
“Accordingly, a prosecution based on Section 67 of the Penal Code is itself inconsistent with the constitutional guarantee and equally invalid. Leave to appeal is granted,” Mr Justice Chali said.
He said offences which infringe on freedom of expression have been declared unconstitutional in many countries among them Zimbabwe, South Africa and Uganda, and should be dropped in Zambia because they were made to suit the colonial masters.
Mr Justice Chali said the earliest point in the application of Section 67 in Zambia was 1938 and the latest amendment was 1958.
He said this was before Zambia became independent and formulated the constitution, which is the supreme law.
Mr Chipenzi, Mr Sakala and Mr Mwanza were on December 10, 2013 accused of publishing a false article in the Daily Nation stating that “The secret police recruitment has been condemned as a conduit of fusing foreign trained militia into the main stream police service.
Kikikikiki away mwe! I think Edgar Lungu spent Wednesday & Thursday at his Ministry of Injustice and High court.
It is good he start clearing out some innocent people, he may gain 10% vote from the 80% of HH.
A judiciary of job seekers. Rotten to the core.
This is perhaps the best judgment Judge Chali has delivered in his entire career. With all his flaws and the fact someone of these cases may have been overtaken by events since the demise of Sata. He may as well be looking to redeem himself in cases where he has no political and personal gain. Way to go judge Chali. By the way where is judge Wood and Malawian judge Chikopa? LOL they are very quiet these days.
Where is judge Chikopa? We want our money achimwene a Chikopo oooh pepani a Chikopa!
The day the nation was informed of Sata’s death an aural of freshness was cast over the nation in many areas. The judicial system that was enslaved by Sataism began to find its legitimacy of existence. Freedom of expression has been one beacon Zambia’s pride beside political independence and any one politician to temper with this right becomes accursed to the national pride. To our amazement most judgements under PF Sata were highly questionable, its like they (judges) were under a spell of sellilique.
Sanity is slowly returning, riddance of Lombe Chibesakunda the ever acting CJ will purify the court systems in our nation.