1.

0 Introduction

In accordance with the principles proclaimed in the Charter of the United Nations, as
elaborated in the Universal Declaration of Human Rights, that recognition of the equal
and inalienable rights of all human beings is an essential foundation of freedom, justice
and peace. The belief that freedom of expression and the free flow of information,
including free and open debate regarding matters of public interest, even when this
involves criticism of individuals, are of crucial importance in a democratic society, for the
personal development, dignity and fulfilment of every individual, as well as for the
progress and welfare of society, and the enjoyment of other human rights and
fundamental freedoms.1

Freedom of expression is arguably one of the major tenets of a democratic

dispensation. The ability of Citizens to freely hold an opinion and express themselves
unfettered without duress is a hall mark of good governance. This essay begins by
looking at the concept of freedom of expression and press freedom. It proceeds to look
at press freedom in relation to defamation and ends with the author’s opinion on the
subject matter.

2.0 Press freedom

The existence of the press in every democratic nation is of great importance .However,
guaranteeing press freedom assumes an event greater importance and expedience. In
fact freedom of the press is the cornerstone of every democratic state. It has become a
tendency world over to frown upon countries mainly on how well the media houses can
function. The latitude of the type of news that media houses can cover is also a
milestone measure of democratic affinity.

The constitution of Zambia guarantees the right to freedom of expression. Article 20

states that “”Except with his own consent, a person shall not be hindered in the
enjoyment of freedom of expression, that is to say freedom to hold opinions without
interference, freedom to receive ideas and information without interference, whether the

1
Article 19 “Global campaign for free expression, Islington High st, London(2000)”

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communication to the public generally or too any person or class of person and
freedom without interference with his correspondence. In addition Article 9 of the African
Charter on human and Peoples rights states that “Every individual shall have the right to
receive information. Every individual shall have the right to express and disseminate his
opinion within the law.

It is explicit that press freedom is guaranteed as ancillary to freedom of expression. This

is very important right. It is indispensable for the enjoyment of one’s own individuality
and for the success of parliamentary democracy. It is said that in a democracy the right
to free expression is not only the right of an individual rather a right of the community to
hear and be informed. Freedom of information is vital to the proper functioning of a
modern representative government. It enhances s the notion of deliberate or even
participatory democracy. Freedom of expression is considered to be an indispensable
concomitant of modern democracy, so is freedom of information. The supreme court in
Christine Mulundika and 7 Other V The Attorney General 3endorsed this preposition
when it stated that “Freedom of expression constitutes one of the essential foundations
of such a society, It is not only applicable information or ideas that are favourably
received or regarded as inoffensive ,but also those which offend, shock or disturb the
population.

The principle of freedom of speech springs from the necessities of the program of self-
government. It is not of nature or reason in the abstract. It is a deduction from the basic
agreement that public issues shall be decided by universal suffrage 4. The Indian press
commission illuminates this point when it stated that “Democracy can thrive not only
under a vigilant eye of the legislature but also under the care and guidance of the public
opinion and the press is par excellence the vehicle through which opinion can become
articulate5. The court in the case of William Banda V The Attorney General 6stated
that, the freedom of expression rests on the assumption that the widest possible

2
Mbilima Brian,Freedom of the press and protection of right to Reputation: The role of the media in Zambia,
UNZA, Lusaka, Zambia (1997)
3
SCZ Judgement No 25 of 1995
4
Meiklejohn Alexander, Political Freedom, Political rights in the United states,4 th edtn,(little brown boston 1976)
5
William Steven Banda V The Attorney General 92/HP/1005
6
92/HP/1005

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dissemination of information from divergent and antagonistic source is essential to the
welfare of the public .Such freedom is the foundation of a government of a free people.
The purpose of such a guarantee is to be preventing public authorities from assuming
the guardianship of the public mind.

The existence of democracy indeed involves a combination of factors; the paradoxical

legal issue prevailing in Zambia is that whereas press freedom is guaranteed in the
supreme law of the land, the right to reputation is also provided for in the same
constitution. While there can be no contention of the unconstitutionality between
freedom of expression and right to reputation in the constitution, what arises as a
pertinent issue is how best to strike a balance between defamation (right to reputation)
and freedom of expression.7

Freedom of the press is indeed no blank cheque for the media houses to be reporting
as they wish, in fact that will defeat the very essence that proponents of the freedom of
the press hold8. This preposition is given credence in Fred Mmembe, Bright Mwape V
The people9 where the court stated that freedom of speech and press cannot be
synonymous with freedom to defame. The need to balance press freedom with the right
to reputation becomes self-evident considering the fact that two competing interest are
provided for by the same constitution with the effect that none would take a lesser
standing that the other.

Ideally defamation should be limited to the protection of reputation. But in a number of

countries across the world, Zambia inclusive defamation laws are also used for the ill-
defined and stifling protection of feelings, which are subjective and place a plaintiff in a
position where they only persuade a court that they feel offended. Having this
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preposition in mind the court in Sata v The Post Newspaper and Another was been
asked to make modifications to the law of defamation in order to advance freedom of
expression or press. The counsel for the defendants Mr Sikota and Mr Lungu put

7
Mbilima Brian,Freedom of the press and protection of right to Reputation: The role of the media in Zambia,
UNZA, Lusaka, Zambia (1997)
8
Ibid
9
SCZ NO 4 of 1996
10
1993/HP/1395

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forward the argument that because article 20 of the constitution of the republic of
Zambia 1991 specifically recognises ,among others, the principle of the freedom of
press, it is not time to modify the common law principles of the law of defamation in their
application to plaintiffs who are public officials as to their right of action ,the burden and
standard of proof and latitude the press should be permitted to subject public officials to
criticism and scrutiny. In this case Chief Justice Ngulube alluded to the fact that when
under attack, those who fill public positions must not be too thin-skinned. This case
similar to the New York Times V Sullivan 11 reduced the standard of damage done to
the Government officials by virtue of them being public servants and under public
scrutiny.

3.0 Defamation and Press freedom.

The only legitimate purpose of defamation laws is to protect reputations. At the same
time, the practice in many parts of the world is to abuse defamation laws to prevent
open public debate and legitimate criticism of wrongdoing by officials. Many countries
have laws designed to safeguard the honour of certain objects, including national or
religious symbols. In as much as an object, as such, cannot have a reputation, these
laws do not serve a legitimate aim. Some states seek to justify defamation laws,
particularly those of a criminal nature, on the basis that they protect public interests
other than reputations, such as maintaining public order or national security, or friendly
relations with other States12. Since defamation laws are not carefully and narrowly
designed to protect these interests, they fail the necessity part of the test for restrictions
on freedom of expression. Some of these defamation laws are well enshrined in the
Zambian laws. The case in point is the case of Macdonald Chipenzi, Richard Sakala,
Simon Mwanza V The People13. The three applicants were jointly charged before the
Subordinate Court at Lusaka with one count of publication of false information with
intent to cause fear and alarm to the public, Contrary to Section 67 (1) of the Penal
Code, Chapter 87 of the Laws of Zambia.

11
(1964)USSC411964)376US254,11 Ed Sd686
12
Article 19 “Global campaign for free expression, Islington High st, London(2000)
13
HPR/03/2014

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Each of the Applicants pleaded not guilty to the said charge. The Applicants’ challenge
of Section 67 is anchored on the provisions of Article 20 of the Constitution of Zambia
which relates to the protection of the freedom of expression. In this case the court held
that Section 67 does not fit under Article 20 (3) of the Constitution. It goes beyond what
is permissible under that clause.14.
In the same vein, reputation is an integral part of the dignity of the individual.
It also forms the basis of many decisions in a democratic society which are
fundamental to its wellbeing: whom to employ or work for; whom to promote
whom to do business with; or to vote for. Once besmirched by an unfounded
allegation, a reputation can be damaged forever, especially if there is no
opportunity to vindicate one’s reputation. When this happen society as well as
the individual is the loser. For it should not be supposed that the protection of
reputation is a matter of importance only to the affected Individual and family.
Protection of reputation is conducive to the public good. It is in the public
interest that the reputation of public figures should not be debased falsely. In
the political field, 15
in order to make an informed choice the electorate needs to
be able to identify the good as well as the bad. Consistently with these
considerations, human rights conventions recognise that freedom of expression
is not an absolute right. 143 Its exercise may be subject to such restrictions as
are prescribed by law, and are necessary in a democratic society for the
protection of others16. This was stated in the case of Micheal Chilufya Sata V
Chanda Chimba17.
4.0 Conclusion
While Freedom of expression remains a core tenet of democracy and its protection
enhances good governance. It is however, required that a balance of interest between
freedom of expression and the reputation of the citizen is protected. It is observed that
abuse of this freedom is at times criminalised to protect individuals, maintain public
order and security. This means therefore that media houses and journalist must be

14
Ibid
15
Micheal Chilufya Sata Vs Chanda Chimba
16
Ibid
17
2010/HP/1282

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aware of the extent to which there freedom of opinion and expression is protected by
the law and when the law washes its hand of protecting this right.
BIBLIOGRAPHY

BOOKS

Meiklejohn Alexander, Political Freedom, Political rights in the United States, 4th edtn,
(little brown boston 1976)

CASES
Christine Mulundika and 7 Other V The Attorney General
Micheal Chilufya Sata V Chanda Chimba
William Banda V The Attorney General
Fred Mmembe, Bright Mwape V The people
Sata v The Post Newspaper and Another
New York Times V Sullivan

ARTICLES AND JOURNALS

Article 19 “Global campaign for free expression, Islington High st, London (2000)”
Mbilima Brian, Freedom of the press and protection of right to Reputation: The role of
the media in Zambia, UNZA, Lusaka, Zambia (1997)

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