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Monday, May 23, 2022

KBN T.V and The Leaked Audio: What Does The Law Say?

Columns KBN T.V and The Leaked Audio: What Does The Law Say?

By McDonald Chipenzi

Since the audio leakage in which it is purported that President Hakainde Hichilema’s political advisor, Levy Ngoma, and Ministry of Home Affairs and Internal Security permanent Secretary, Joseph Rikki Akafumba, discussed ECZ CEO and took sides in the internal squabbles of the opposition Democratic Party (DP), raised mixed comments from various stakeholders.

Worst still was the summoning of the KBN T.V. manager whose station aired the audio first which summons have also triggered sharp criticisms from some media bodies and human rights defenders against the Zambia Police Service and the Government.

The question is, is there any possible violation of the law by the KBN T.V. or not but mere media harassment by the new dawn government using the police?

President HH has promised the nation of respecting the rule of law and by nature, the rule of law means enforcement sections of the existing laws whether good or bad by the police or any LEA failure to which it would be lawlessness.

Zambia last year hastily enacted the Cyber security and crimes Act No. 2 of 2021 which sought to intercept, monitor, and interfere with cyber communication among other mandates by law enforcement agencies.

In this Act under section 32(2)(a) and (b), it is illegal for *a person to access, disclose or attempt to disclose to another person, the content of any intercepted communication or use or attempt to use, the contents of any intercepted communication.*
The penalty attached to this act by any person, on conviction, is 1m penalty units (ZMK300, 000) or 10 yrs in prison (subsec 3 of sec. 31).

In addition, only law enforcement agencies are mandated to intercept, attempt to or use, or procure another person to intercept and use any intercepted communication (sec 26) any other person who is not a LEA or spouse of the LEAs who does intercept or use intercepted communication commits an offence and is liable on conviction to the penalties cited above.

On summoning and searching suspected cyber offenders, the Act empowers the cyber inspector/LEAs under sec. 15 to summon any suspect to answer questions, produce physical or electronic record, document or copy of the article which is subject of or relevant to the investigation and also orally examine a person who appears to be acquainted with facts and circumstances relating to the alleged cyber offence/threat.

The LEAs also have been empowered under the Act to enter, access and search premises and seize any information, make copies of a book, document or records the suspect has in possession of, at any reasonable time and without prior notice (Sec11)
Section 12 criminalises obstruction from suspects of the LEAs from conducting a lawful search or seizure and Sec. 15 criminalizes *giving false or refusing to give information or refusing to cooperate with or hinders the LEAs from conducting lawful search or seize or refusing to produce any record, document or copy required by the LEAs

This is how bad the law is to the media and investigative journalism and it is why we opposed it and challenged it in court.
Action Aid ZAMBIA, at one time, organised a media sensitization seminar to enable media appreciate the new working environment journalists would be operating under with the Act, I was a facilitator but alas, only a few media heads came and the rest were intern reporters.

Therefore, with the above, *it will be unfair to condemn the police for enforcing the law which was left by the previous regime or condemn the Government

There are two possibilities in the case of KBN T.V. that is, the station broke the law knowingly to challenge it in court when arrested and called for its repeal or broke it ignorantly without any purpose for doing so.

I still stand on the position that the *Cyber security and crimes Act is a bad law in the fight against corruption and in the promotion of a transparent and accountable governance system in Zambia

Therefore, my considered comment and opinion on the KBN T.V. issue is to condemn the law and call for its immediate review to remove all these evil sections in it than attacking police and government.

17 COMMENTS

  1. I assume you are “privately” happy…. just sugar coating the issue by feebly condemning the law. You are not vehemently against this law like you were last time.

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  2. In the Internet age this debate is moot. Most of society did not even get the leak directly from KBN as it were. Tavimvelela pa mwela!

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  3. My two cents:

    1. The issue is not with the police. They have a duty to enforce the law. We cannot have the police ignoring the law, even if it is a bad law.

    It isn’t even a ‘bad’ law, in principle. I Listening in to conversations is illegal. Even for police, they require a warrant first. Being a media company does not entitle one to wiretap into a secret conversation.

    That is a separate topic from what those people in the call did.

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  4. The law says you cant tap into private conversations. There are 5 people to face punishment’s here, these are the ones who illegally recorded the conversation, the ones who aired the recorded the conversation without verification, then Akafumba, and also Levy and the fifth is the one who fabricated the recording incase it is just a fabricated recording

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  5. Should the police investigate an unlawful act, which unlawful act exposes another (bigger) unlawful act?
    Shouldn’t the police focus on investigating Ngoma and Akafumba? Who really should they be investigating now?
    I leave the questions to lawyers and philosophers, not forgetting the keyboard warriors.
    My two cents on Chipenzi, he is afraid of simply condemning the police, he is partisan.

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  6. Repeal the cyber crimes law and replace it with freedom of information act so that media can inform the public on what their leaders are up to. These exposes are what is known as investigative journalism and should be encouraged as well as commended. It is through such that we can check government.

  7. So HH the smart Vasco da Gama and conman is just trotting around the globe and not attending to national issues that propelled him to power after all.

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  8. At least Chipenzi has tried to unravel his opinion on this ‘bad’ law while others can’t advance an opinion but jump into foul language. Such are the losers who amplify the polarization the citizenry are grappling with. It still baffles the mind that on average Zambians do not understand the role of their elected representatives to the legislature. Here is a bad law that a good majority wishes repealed yet our representatives are not being lobbied to act on this law but everybody wants to load it on the president who does not have the power to unilaterally change or repeal any law enacted by parliament! MacDonald you say a media sensitization seminar was only attended by interns. That’s the norm by most heads of institutions to disregard such gatherings because they look at organizing…

  9. contnd….. personalities and not content of matter on discussion. Had media people taken seriously the invitation many more Zambians would have benefitted from their postings. The “bad” law is now biting though people can continue criticizing it or condemn it, Zambians have to still live with it and obey it for it is the existing law! Whether enacted under the PF administration and the effects are being felt under the UPND administration there is no need to point fingers at anyone but if agreed that it is indeed a bad law then let each constituent petition their representative!

  10. So iwe Chipenzi you were just forced to join other CSOs to condemn BMW and the Up and Down government right? So what you are saying here does not tally with the CSOs collective statement

    As you are a nyudoni praise singer, strike off organization from list, we chinangwa we.

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