FOUNDATION for Democratic Process (FODEP) executive director MacDonlad Chipenzi, Daily Nation Newspapers proprietor Richard Sakala and Production Editor Simon Mwanza have been freed on charges of publication of false information with intent to cause fear and alarm to the public.
The Lusaka High Court ruled that Section 67 of the Penal Code of the Laws of Zambia is unconstitutional and illegal.
High Court judge-in-charge Isaac Chali 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.
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.
Mr Justice Chali said the liability for prosecution and conviction under Section 67 appeared not to be dependent upon any actual occurrence of public fear, alarm or disturbance of public peace but on State’s perception of the possible impact the expression might have on the public.
He said the intention of section 67 was to suppress native dissenting views which could have the effect of fomenting insurrection against the colonial rulers and that in the absence of the constitution it would have been good law at that time.
Times of Zambia