By Isaac Mwanza

Introduction

The invocation and extension of the right to freedom of expression by our politicians and civil society activists in criticising judges and judicial officers has caused greater controversy after the lapse of the 2016 Presidential Election Petition. Two civil society activists, having made comments about the Judges of the Supreme Court of Zambia, have been called to explain themselves (a matter I will not dwell upon as it is active before the Supreme Court itself).

Following the publication of an article by one Sunday Chanda, Media Director of Zambia’s governing Patriotic Front in which Mr. Chanda made a number of comments criticising the decision of one of our Magistrates, Mr. Exnorbit Zulu to order the trial of Dr. Simon Miti who is the Principle Private Secretary to the President of the Republic, 7 civil society organisations have seized an opportunity to raise an issue with the Judiciary. The 7 civil society organisations are now up in arms, calling upon the Chief Justice to consider the prosecution of Mr. Chanda for what they allege to be contempt of court.

In this article, I advance my opinion that in a democratic and free society, such as Zambia, people are entitled to criticise the conduct of the courts or of a judge although different standards apply when you are talking about cases that are before the courts or disposed of by the courts. The question is, are there any limits to what politicians and activists can legally say about our judges and judicial officers in Zambia?

My verdict

It is a general principle that all Zambians, including politicians and activists, have the freedom to criticise the courts and judges without the risk of criminal prosecution. This is premised on the provision of Article 20(1) of the Constitution of Zambia which states,

“Article 20. [Protection of freedom of expression]

(1) Except with his own consent, no person shall be hindered in 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.

But there is more to the story. There are limits to this freedom as was stated by the Supreme Court of Zambia in Judgment No. 4 of 2008 between Attorney-General and Roy Clarke, when it held, “The Constitution limits or constricts freedom of expression. Freedom of expression is not limitless.”

As is the case in many other countries, it is a criminal offence to attack serving judges and judicial officers in Zambia. Politicians and activists who comment on active court proceedings may face criminal charges for subjudice contempt if there is a real risk that the person’s comments may prejudice a fair trial.

Similarly, people who criticise judges or judicial officers in an abusive or unfair way (as determined by the court itself) may also face criminal prosecution for the offence of scandalising the court. The offence of scandalising the court has been criticised as unmerited and has been abolished in the United Kingdom, but remains part of our laws in Zambia.

What has been going on?

During a number of media briefings at his residence in New Kasama, Zambia’s main opposition leader, Hakainde Hichilema who was a losing candidate in the 2016 presidential election and the petitioner, along with his Vice Presidential running mate, Mr. Geoffrey Bwalya Mwamba, has come out to nakedly state that some judges of the Constitutional Court who voted to throw out his petition had received money from State House to throw out his petition, thus compromising their positions on the Court.

“These days I do not even beat about the bush, Judge Anne Mwewa Sitali is corrupt, Palan Mulonda corrupt, Mungeni Mulenga also corrupt. That is why we are saying dissolve the Constitutional Court… They got 30 pieces of silver. You cannot throw out a petition before you hear it. They are agents of evil, the three musketeers,” said Hichilema while heaping praise on Madam Justice Margaret Munalula and Madam Justice Hildah Chibomba, the President of the Court, the two judges who issued dissenting opinions in the matter.

In September 2017, while on a visit to South Africa, Mr. Hichilema accused the judiciary of corruption and of being under the control of Republican President Edgar Lungu. Mr Hichilema, in the company of South Africa’s Democratic Alliance leader Mr. Mmusi Maimane, alleged that the Zambian Judiciary was controlled by the Executive and also made reference to some of his party members who were acquitted by the courts of law.

In the case of Bishop John Mambo, the Court has summoned him to explain why he must not be cited for contempt when he wrote a letter to the Chief Justice in relation to Appeal No. 37 of 2017 between Savenda Management Services Ltd v. Stanbic Bank Zambia Ltd.

In the letter to the Chief Justice, Mr. Mambo wrote, in part stating: “the legal suit against the Bank by Savenda, though given a favourable judicial decision in the lower court, was suspiciously overturned by the higher court on appeal… Most of the judges seem to be more interested in achieving personal ambitions at the expense of justice for all and equality before the law…” Similarly, in another case, another Zambian national, Mr. Gregory Chifire has been cited with 4 counts for various media statements and the letter written to the Chief Justice in an almost similar manner. This matter cannot be discussed here because it is an active matter before the Supreme Court.

In a letter dated August 8, 2018, some 7 civil society organisations led by Ms. Laura Miti, have also written to the Chief Justice requesting her to investigate the statement issued by Sunday Chanda for possible contempt of court, a move that is unprecedented in the life of Zambia’s civil society that has previously been known to defend the rights of everyone – including those whose opinion they may not agree with. Part of the letter read:

“While we, as CSOs, have always been of the view that once a case is disposed of, it is no longer subjudice and therefore those who comment on it are not in contempt of court, we are convinced that the direction the highest court of the land has taken in the Savenda Management Services vs Stanbic Bank Limited case must be seen to be applied fairly, until clarity of what constitutes contempt of court is achieved,” wrote Laura Miti.

What does the law say?

The Zambian law, a remnant of English law, allows anyone to comment on judges and court decisions, but there are limits. The law relating to contempt of court developed in order to protect the judiciary and judicial proceedings from actions or words which would impede or adversely affect the administration of justice, or ‘tends to obstruct, prejudice or abuse the administration of justice’. In Zambia, contempt of court is governed by provisions of the White Book known as Rules of the Supreme Court, 1965 (1999 Edition), Volume 1.

Two principal forms of criminal contempt exist in Zambia: (i) Subjudice contempt also known as contempt in the face of the court which is known to Ms. Laura Miti and her co-applicants in the case cited, and her group of CSOs, and (ii) scandalising the court, which may not be as well known or as well-understood by the 7 CSOs. Every politician, activist or media person must take keen interest to know these forms of contempt lest they find themselves wanting and unable to defend themselves.

1. Subjudice Contempt

The offence of subjudice contempt may be committed when someone says or publishes something about a matter currently before the court which runs a real risk of interfering with those proceedings. This is contempt in the face of the court. Order 52/1/20 of the White Book gives examples of this type of contempt as including assaulting or insulting the presiding judge. A demonstration which interrupts proceedings, or insulting behaviour, or refusal of a witness to answer questions or give evidence, or comply with a court order to disclose information may amount to contempt.

The test was stated in a British case from the 1960s where the Court stated, “The test must always be, in my judgment, whether or not in the circumstances of the particular case what has happened is something which is likely to prejudice the fair trial of the action, and the risk that it will prejudice the fair trial of the action must be a real risk.”

Lord Salmon of the House of Lords, when considering principles of contempt in the 1980s, said:

“I am and have always been satisfied that no judge would be influenced in his judgement by what may be said by the media. If he were, he would not be fit to be a judge.”

Opinions differ though. Viscount Dilhorne took the view in the same case that:

“[I]t should, I think, be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it.”

The White Book also provides for contempt of court through words written or spoken, calculated to interfere with the course of justice (Order 52/1/22) and opens with an acknowledgment, “This branch of the subject has given rise to some controversy as it involves restriction upon freedom of speech.”

Two distinct types of contempt are involved:

1. Publications which create a substantial risk that the course of justice in proceedings that are active will be impeded or prejudiced. The mischief is the risk of prejudice to a fair trial. In commencing proceedings under this form of contempt, “the Court requires to be satisfied that the proceedings are genuine and that risk of prejudice is real.” It is a defence to show that the publisher of offending material, having taken all reasonable care, did not know and had no reason to believe that proceedings were active.

2. Publication of matters which the law or the Court has decided should be kept confidential in the interests of justice.

Under the existing law in Zambia, it is also contempt of court when one does an act calculated to prejudice the due course of justice (Order 52/1/23), whether such acts are committed before, during or after the proceedings. So, interference with advocates, parties, witnesses, intimidation of judges and judicial officers in or immediately outside the Court also constitutes contempt and may be dealt with by the judge summarily and on his own motion.

2. Scandalising the court

The contempt form of scandalising the court is premised on the need to maintain public confidence in the judiciary underpins this offence. A person can be guilty of the other contempt offence, “scandalising the court”, even if their actions do not interfere with a specific court case. This offence occurs when someone makes derogatory statements about “individual judges or courts or of the judiciary in general or a section of it” that are “likely to undermine the administration of justice or public confidence therein.” As per Order 52/1/21 of the White Book, this form of contempt exists through words that are written or spoken in scandalising the Court. Under this Order:

1. Personal insulting, scandalous or scurrilous words or abuse of a Judge as Judge is contempt

2. Statements to the effect that the accused in a criminal case will not get a fair trial are a contempt but libellous or misleading criticisms on the conduct of a Judge (or magistrate), after the trial, are not necessarily contempt.

3. Criticism of the Court or its decisions, in the course of the exercise of the right of free speech, even if it is inaccurate is not a contempt of Court

The English, Indian and our own Courts in Zambia have recognised that there is a delicate balance between the right to criticise the courts and judges and the need to protect the public’s confidence in the system. So, people are free to be critical of the courts, if their comments are made in good faith.

In a House of Lords case dating back to the 1930s, Lord Atkin said that:

“No wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice…provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely expressing a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

In the 1960s, Lord Denning – described as the “best-known judge of this, or perhaps any, generation” – stated:

“It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that … those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy, still less into political controversy. We must rely on our conduct itself to be its own vindication.”

In the 1977 case of The People v. David Masupa, High Court of Zambia Judge, Manival Moodley, held that,

“Mere criticism of a judicial decision does not amount to contempt; where the criticism becomes an attack or abuse on the partiality of a judge or magistrate in relation to his conduct in a judicial proceeding or when there is an express or implied allegation of bias on the part of a judicial officer then such conduct could amount to contempt.”

In a 2002 speech, former chief justice of the High Court of Australia Sir Anthony Mason suggested,

“Recognising the strong public interest in free discussion of the matter of public importance, the courts have been increasingly reluctant to use the contempt power simply to protect judges from criticism. Statements criticising judges for their decisions do not attract an exercise of the contempt power, at least when the criticism is fair and honest.”

In the 2008 Roy Clarke case, our Supreme Court of Zambia held that:

“Freedom of expression is one of the strong attributes of a democratic society, and that to the extent permitted by the Constitution itself, freedom of expression must be protected at all costs, and those who hold public office must be prepared to suffer, and be tolerant of criticism.”

So what are the barriers? The answer is, like many aspects of law, it depends. The New South Wales Supreme Court (in the 1972 case of Attorney-General for NSW v Mundey) suggested that a comment about the courts or a judge may be contempt if it,

1. “is merely scurrilous abuse” or

2. “excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office.”

But the court also noted that the second type will not always amount to contempt. The boundary comes down to “questions of degree and therefore uncertainty.”

The future of scandalising the court

The late Australian High Court justice Lionel Murphy, took the view that “the law of criminal contempt in scandalising the courts is so vague and general that it is an oppressive limitation on free speech”. In a 1983 dissenting High Court judgment, he also said “No free society should accept such censorship.”

The offence of scandalising the court fell out of use in the United Kingdom from the 1930s, and was abolished in 2013.

The case of Sunday Chanda’s Criticism of the Magistrate v. Laura Miti

Sunday Chanda’s article, which I have read over and over again, amounts to criticism of the magistrate in calling for the prosecution of a State Witness who was not an accused before Court and offers a fair comment on who has the right to decide persons to be prosecuted in criminal matters.

Sunday Chanda’s criticism of the judgment of the magistrate, in my view, has the backing of Order 52/1/21 of the Rules of the Supreme Court that categorically states, “criticism of the Court or its decisions, in the course of the exercise of the right of free speech, even if it is inaccurate is not a contempt of Court.”

To borrow from an Indian contempt of court case in Jammu & Kashmir where a subordinate court had, suo motu, initiated contempt proceedings against the heads of Transparency International (India) and the Centre for Media Studies—the two organisations had jointly carried out a survey on judicial corruption which showed that the judiciary was widely perceived to be corrupt by the public, the Indian Supreme Court observed that data that exposes any lacunae of the judicial system is not tantamount to contempt and is a welcome step forward in self-rectification.

CONCLUSION

The law applicable in Zambia, allows anyone to comment on judges and court decisions, but there are limits. There is nothing unlawful about criticising the judge or magistrate as did Mr. Sunday Chanda but, of course, that can be affected by the circumstances whereby if your criticism had some particular sort of effects, then you can be prosecuted for contempt.

You may criticise the decision of any court in Zambia as did Mr. Chanda and not be cited for contempt but you may be called to account when you call a Judge or magistrate corrupt or issue personal scurrilous abuse of a Judge. Is it right for civil society organisations, defenders of people’s rights to freedom of expression, to call for Mr. Sunday Chanda’s views to be investigated while, at the same time, could have turned a deaf ear and a blind eye to Mr. Hakainde Hichilema’s views as cited above?

Ms. Laura Miti and her colleagues from 7 CSOs should remember the words of Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it.” The debate around the call by Magistrate Zulu to call for Mr. Miti to stand trial is a healthy debate that exposes the lacunae in the judicial system and is not tantamount to contempt but should be welcomed as a step forward in self-rectification.

It is my humble view that Sunday Chanda’s case may not attract any further investigation, let alone the charge of contempt of court. I will not comment on the cases of Bishop John Mambo or Mr. Gregory Chifire who is my good friend because the matter is now before court and I am better off holding my peace.

(Disclaimer: Views expressed in this article do not necessarily reflect the views of any organisation, association or institution the author may be affiliated to and neither do they represent the views of this media but those of the author)