Introduction

The acknowledgment of political speech as a constitutional principle and the emergence of the
principle of legality have driven the doctrinal evolution of freedom of speech at common law.
The Courts now treat freedom of speech as something more than a residual liberty. Therefore, it
is from this background this assignment will comment on the scenario in the essay question by
taking into account that Zambia is a democratic country. It will further give advice from a human
right perspective as to how the situation in the question can be addressed.

Common law
Common law is the legal system used in Great Britain and the United States. According to
Common Law, judges must consider the decisions of either court about similar cases when
making their own decisions.1 A common law system is a legal system that gives great
precedential weight to common law, on the principle that it is unfair to treat similar facts
differently on different occasions.2 The body of precedents is called common law and it binds
future decisions or it is also used to denote the law applied by courts as developed through the
systems of precedent without reference to legislation passed by parliament. However, there are
several different definitions of the common law. The term may refer, for instance, to an historical
and geographic concept; that is, to the totality of the law of England and its former colonies. It
sometimes is taken simply to mean any of various substantive and procedural rules and
concepts.3 In the common law, the rules of today are to a high degree derived from preceding
decisions of courts in similar past cases. If a judge, or any other person, wants to determine the
answer to a legal question, he reviews past judicial decisions and analogizes from them to the
facts of the current case. The common law is typified by this reference to the collective judicial
wisdom of the past as the primary source of rules applicable to the problems of the present.
There is, of course, nothing unique about the reverence for the past thus displayed. In all walks
of life, people tend almost automatically to mould their patterns of behavior on those followed
by others. We justify the rightness of our actions on the grounds simply those others are doing or
have done likewise.4

1
What is common law? (lawteacher.net,September,2021) https://www.lawteacher.net
2
Fiona Cownie et al (2007) English Legal System. Oxford: Oxford University Press.
3
Frank, Courts on Trial, Princeton Press, Princeton, 1959, at p. 373
4
Ibid

1
Right to Freedom of Speech
There is no common law right to free speech which trumps other legal rights but there is a
general freedom of speech because of the common law principle that ‘everybody is free to do
anything, subject only to the provisions of the law. 5 The freedom recognized by the common law
is confined only by limitations imposed by statute or by other rules of the common law that seek
to protect the common good or those personal interests to which the common law accords
priority.6
This posits freedom of speech not as a right but as one aspect of a residual liberty which exists
once the scope of the general law and statute is ascertained. And that is precisely what the
unanimous High Court appeared to have in mind in Lange v Australian Broadcasting
Corporation (‘Lange’),7 that: “there is no common law right to free speech” and it was made in
a decision where the High Court emphatically confirmed the existence of a constitutional
freedom of political speech under a legal system based on the common law, ‘everybody is free to
do anything, subject only to the provisions of the law, so that one proceeds ‘upon an assumption
of freedom of speech’ and turns to the law to discover the established exceptions to it. This
conception of speech as residual liberty is said to arise under a legal system based on the
common law that is important. It is, for example, consistent with Dicey’s account of the English
Constitution and the status or location of freedom of speech within it, of which he tartly
observed: ‘Freedom of discussion is … in England little else than the right to write or say
anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or
written’.8 It also accords with the notion that a legal right in a common law system is something
which an individual possesses and which may be vindicated or protected by the provision of a
remedy in the event of infringement.

Internet shutdown and Zambian Laws affecting Freedom of the internet

An internet shutdown is an intentional disruption of internet or electronic communications,

rendering them inaccessible or effectively unusable, for a specific population or within a

5
Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (Ashgate, 2000)
6
Ibid
7
(1997) 189 CLR 520 (‘Lange’).
8
AV Dicey(1964) Introduction to the Study of the Law of the Constitution(10th ed). Macmillan. p. 246.

2
location, often to exert control over the flow of information. 9 There are different types of
shutdowns blanket shutdowns, or total internet blackouts, access to the internet or all
telecommunication services is completely cut, usually by a government actor. 10 An internet
shutdown can also take the form of throttling, when internet speeds are intentionally slowed
down for the purpose of making it harder or even impossible for people to upload, download, or
access information. One of the tactics commonly used by governments is downgrading mobile
internet speeds from 4G and 3G levels to 2G.11
Shutdowns can be imposed nationwide or they can be targeted to a specific neighborhood,
village, region, or province. Targeted shutdowns can be more difficult to detect and verify,
particularly in remote regions and areas that are isolated from the outside world, such as conflict
zones that may not be accessible to journalists and human rights defenders due to safety reasons
or government imposed restrictions.12
However, Article 20 (1) of the Constitution of Zambia 13 provides for the right to freedom of
expression, and the right to privacy. It states that: “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.”
However, the right to freedom of expression as provided for in Constitution 14 of Zambia is
threatened by the provisions of Electronic Communications and Transaction Act. 15 Although
Zambia does not have a data protection law, there are provisions under the Electronic
Communications and Transaction Act which provide for data protection and privacy. 16Part VII,
Sections 41 and 42 of the Act17 provides for the protection of personal information and lists
principles governing the collection of personal information. Section 42 18 states that a collector
9
KeepItOn, April, 2021. Internet shutdowns and elections handbook
10
Ibid
11
Ibid
12
Ibid
13
Chapter 1 as amended in 2016
14
Ibid
15
Act No. 9 of 2009 of the laws of Zambia.
16
CIPESA(December, 2016) State of Internet Freedom in Zambia 2016. Published by CIPESA|www.cipesa.org
17
Act No. 9 of 2009
18
Ibid

3
must disclose in writing to the data subject the specific purpose for which any personal
information is being requested, collated, processed or stored.
Section 6119 allows persons to request for take down of any data or activities infringing their
rights, unlawful materials or activities. Meanwhile, Section 62 (1) 20 bars service providers from
active monitoring of users’ activities while subsection (2) gives the Minister powers to issue a
statutory instrument to prescribe procedures for service providers to "inform the competent
public authorities of alleged illegal activities undertaken, or information provided, by recipients
of their service; and communicate to the competent authorities, at their request, information
enabling the identification of recipients of their service.” Unlawful interception of
communications is prohibited under Part XI, section 6421 and is punishable by imprisonment for
a period of 25 years. The law calls for the establishment of a Central Monitoring and
Coordination Centre managed, controlled and operated by the department responsible for
Government communications. It is under this centre that lawful interception is permitted by only
law enforcement officers who can do so upon issuance of a court order.
Under Section 77,22 service providers are mandated to ensure that their electronic communication
systems are technically capable of lawful interceptions. They are also required to install
hardware and software facilities and devices to enable the interception of communications when
so required by a law enforcement officer or under a court order; and to provide services that are
capable of rendering real-time and full-time monitoring facilities for the interception of
communications. Furthermore, service providers are required to provide all call-related
information in real-time or as soon as possible upon call termination; provide one or more
interfaces from which any intercepted communication shall be transmitted to the Monitoring
Centre; transmit intercepted communications to the Monitoring Centre through fixed or switched
connections; and provide access to all intercepted subjects operating temporarily or permanently
within the service provider’s communications systems, and where the interception subject is
using features to divert calls to other service providers or terminal equipment, access to such
other providers or equipment. Service providers who fail to comply with these requirements are

19
Ibid
20
Ibid
21
Ibid
22
Ibid

4
liable upon conviction to a fine or to imprisonment for a period not exceeding five years, or to
both.
Principles of the Current Zambian Constitution and Democracy
The multi-party democracy was introduced when a new constitution was enacted in August
1991. Under Article 1(1) of the Zambian Constitution23 the Constitution states that: it is the
supreme law of the land and any other written law, customary law and customary practices that
is inconsistent with its provisions is void to the extent of the inconsistency. This strengthens the
role of the judiciary in the protection of fundamental rights and freedoms of the individual. In the
case of, Chipenzi v. The People,24 the applicant challenged the constitutionality of section 67,
arguing that the law was inconsistent with Article 20 of the Zambia’s constitution, which
guarantees the freedom to impart and communicate ideas and information without interference.
The High Court of Zambia found that Section 67 of Zambia’s Penal Code, prohibiting the
publication of false information likely to cause public fear, violated the Constitution as it did not
amount to a reasonable justification for limiting the freedom of expression. It held that Section
67 was impermissibly overbroad as it was capable of not only prohibiting false news but also
those with honest beliefs as to the truthfulness of their statements. According to the Court, the
law virtually restricted any statement which did not meet the majority definition of truth and
lends force to the argument that the law could be used or abused in circular fashion essentially to
permit the prosecution of news which is unpopular in the ears of those in authority. Furthermore,
the Court ruled that the law violated the Constitution because it allowed the government to shift
the burden of proving the elements of the crime, as it required the accused to prove the lack of
knowledge of the falsity of his or her statement.
In view of the above, the Zambian government’s shutdown of the internet during the August, 12
general election was an abuse by those in authority to prevent the circulation of news which was
unpopular in their ears. This act was a violation of the freedom of expression in a democratic
State as enshrined in Article 20 of the Constitution. 25 Therefore, the pronouncement by the
Zambian government, via its information and broadcasting Services Permanent Secretary, Amos
Malupenga that: “The government expects citizens to use the internet responsibly. But if some
people choose to abuse the internet to mislead and misinform, the government will not hesitate to

23
Article 1(1) of the Constitution of Zambia (Act No. 2 of 2016) Chapter 1, Volume 1 of the Laws of Zambia.
24
(HPR/03/2014)
25
Chapter 1 of the laws of Zambia.

5
invoke relevant legal provisions to forestall any breakdown of law and order as the country
passes through the election period.”
Even if Zambia isn’t the first African country to witness this social media restrictions and
internet shutdown during an election this act has no precedential weight at common law, on the
principle that it is unfair and does not bind any similar act. It cannot be applied as it has not
developed through the system of precedent with reference to legislation passed by parliament. In
Chipenzi v. The People,26 section 67 was found to be inconsistent with Article 20 of the
Zambia’s constitution, which guarantees the freedom to impart and communicate ideas and
information without interference. Therefore, in a similar fashion the statement and actions of the
Zambian government are inconsistent with Article 20 of the Zambian constitution, as the
statement interferes with the freedom to impart and communicate ideas and information in a
democratic state. This is the same as in electoral periods; governments that impose internet
shutdowns also deploy other tactics to silence their political opponents, such as through their
control over the media and restrictions on electoral campaigning and political gatherings. This
gives ruling parties and candidates with close ties to the government an advantage over their
competitors, particularly independent candidates and opposition parties. This is discriminatory
and a violation of equal access to the media, one of the key criteria for democratic elections. 27
Therefore, the right to freedom of expression as provided for in Constitution 28 of Zambia is also
threatened by this discriminatory and violation of access to the media which is a key criteria in a
democratic state. The provisions of Electronic Communications and Transaction Act, 29 on the
other hand also interferes with the freedom to impart and communicate ideas and information,
since there are provisions under the Electronic Communications and Transaction Act which
provide for data protection and privacy. Furthermore, in the common law, the rules of today are
to a high degree derived from preceding decisions of courts in similar past cases. If a judge, or
any other person, wants to determine the answer to a legal question, he reviews past judicial
decisions and analogizes from them to the facts of the current case. Therefore, the reference that
other African countries have done so doesn’t form the basis of the common law from which we
can derive the decision which can be binding.

26
(HPR/03/2014)
27
KeepItOn, April, 2021. Internet shutdowns and elections handbook
28
Ibid
29
Act No. 9 of 2009 of the laws of Zambia.

6
Internet shutdowns hinders the enjoyment of human rights

To begin with Human rights are commonly understood as being those rights which are inherent
to the human being. The concept of human rights acknowledges that every single human being is
entitled to enjoy his or her human rights without distinction as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status. 30
Human rights are legally guaranteed by human rights law, protecting individuals and groups
against actions which interfere with fundamental freedoms and human dignity. They are
expressed in treaties, customary international law, bodies of principles and other sources of law.
Human rights law places an obligation on States to act in a particular way and prohibits States
from engaging in specified activities. However, the law does not establish human rights.31
Human rights are inherent entitlements which come to every person as a consequence of being
human. Treaties and other sources of law generally serve to protect formally the rights of
individuals and groups against actions or abandonment of actions by Governments which
interfere with the enjoyment of their human rights. The following are some of the most important
characteristics of human rights:32
i. human rights are founded on respect for the dignity and worth of each person;
ii. human rights are universal, meaning that they are applied equally and without
discrimination to all people;
iii. human rights are inalienable, in that no one can have his or her human rights taken
away other than in specific situations . for example, the right to liberty can be
restricted if a person is found guilty of a crime by a court of law;
iv. human rights are indivisible, interrelated and interdependent, for the reason that it is
insufficient to respect some human rights and not others. In practice, the violation of
one right will often affect the respect of several other rights. All human rights should
therefore be seen as having equal importance and of being equally essential to respect
for the dignity and worth of every person.

30
UNITED NATIONS. HUMAN RIGHTS:A Basic Handbook for UN Staff
31
Ibid
32
Ibid

7
The obligation to protect, promote and ensure the enjoyment of human rights is the prime
responsibility of States, thereby conferring on States responsibility for the human rights of
individuals. Many human rights are owed by States to all people within their territories, while
certain human rights are owed by a State to particular groups of people: for example, the right to
vote in elections is only owed to citizens of a State. State responsibilities include the obligation
to take pro-active measures to ensure that human rights are protected by providing effective
remedies for persons whose rights are violated, as well as measures against violating the rights of
persons within its territory.
In Zambia the fundamental human rights and freedoms are guaranteed under the Bill of Rights, 33
including freedom of assembly and expression. However, the manner of application of laws
tends to negate the spirit of the constitutional provisions on freedom of assembly and expression.
During the period towards the August, 12 general elections, incidences of violation of these
rights by shutting down the internet was an infringement on the rights of individuals believed to,
or actually holding divergent views from the government, opposition political parties and or
groups believed to be critical of government contrary to the law. Disrupting access to the internet
hindered the full enjoyment of a wide range of fundamental rights and freedoms, particularly the
right to freedom of expression and opinion, access to information, and freedom of assembly and
association as provided for under Article 20 (1) of the Constitution of Zambia.34

Advice from human right perspective on how the internet shutdown can be addressed
The restrictions affected ordinary lives by preventing people from communicating, harming
businesses, and disrupting education and access to online services and opportunities. In times of
crisis such as during armed conflict or a global pandemic shutdowns endanger public health and
safety, as people are unable to get essential information about what’s happening around them,
reach emergency services, or communicate with and protect their loved ones. Internet shutdowns
are inherently disproportionate measures that are not justified under international human rights
law.
Disrupting access to the internet is not only a violation of international human rights law but it
also hinders the full enjoyment of a wide range of fundamental rights and freedoms, particularly

33
Part III of the Constitution of Zambia
34
Chapter 1 as amended in 2016

8
the right to freedom of expression and opinion, access to information, and freedom of assembly
and association as provided for under Article 20 (1) of the Constitution of Zambia.35
Therefore, there is need for human rights education. The fundamental role of human rights
education is to increase the awareness of individuals in order to defend their rights and those of
others. Knowledge of human rights constitutes a forceful means of achieving empowerment.
Human rights education needs learners and educators working together to translate the language
of human rights into knowledge, skills and behavior. This necessitates developing an
understanding of the responsibility each individual has in making those rights a reality at the
local, national and international levels.36
Furthermore, the involvement of NGOs and ECOSOC in monitoring human rights violations,
Article 7137 provides for consultations between the Economic and Social Council and non-
governmental organizations. Several hundred international non-governmental organizations have
received consultative status under this Article, which permits them to attend public meetings of
the Council, the Commission on Human Rights and the Sub-Commission on the Promotion and
Protection of Human Rights as observers, and, in accordance with the rules established by the
Council, to make oral statements and submit written documents. NGOs also sit as observers at
public working group sessions of these bodies.38 In their interventions at such meetings, the non-
governmental organizations place emphasis on human rights situations requiring action on the
part of the United Nations and suggest studies which should be carried out and instruments
which should be drafted; they also contribute to the actual drafting of declarations and treaties.
Non-governmental organizations also play an important role in promoting respect for human
rights and in informing the general public of United Nations activities in the field of human
rights through education and public information campaigns. Therefore, through the above
recommendations the NGOs will ensure necessary reforms are undertaken to enhance
professionalism and accountability by the government and curb the violations that affect
enjoyment of rights.39

35
Chapter 1 as amended in 2016
36
UNITED NATIONS. HUMAN RIGHTS:A Basic Handbook for UN Staff
37
Charter of the United Nations
38
Ibid
39
Ibid

9
Conclusion
Since Zambia has witnessed a growth the internet, and other forms of Information and
Communication Technologies acts as enablers for citizens to advance their right to freedom of
expression and access to information and Article 20 of the Constitution 40 guarantees these rights
therefore the retrogressive laws such as the Electronic Communications Act that limit the
enjoyment of online expression and privacy by sanctioning surveillance must be abolished
because they violate the enjoyment of Human Rights of citizens as provided for under the
constitution. However, In order to promote internet freedom in the country, there is need to
understand what the state of internet freedom is, what the obstacles are, which stakeholders are
most at risk, and the tactics used to curtail internet freedom. Since, there has been rising interest
by the Zambia government in citizens’ online activities which has resulted in cases of banning
and blocking of websites critical of the state, intimidation and arrest of journalists and other
online human rights activists.

BIBLIOHGRAPHY
40
Chapter 1 of the laws of Zambia.

10
AV Dicey(1964) Introduction to the Study of the Law of the Constitution(10th ed). Macmillan.
Fiona Cownie et al (2007) English Legal System. Oxford: Oxford University Press.
Frank, (1959) Courts on Trial. Princeton: Princeton Press.
KeepItOn, April, 2021. Internet shutdowns and elections handbook
Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (Ashgate, 2000)
UNITED NATIONS. HUMAN RIGHTS: A Basic Handbook for UN Staff

ELECTRONIC REFERENCES
What is common law? (lawteacher.net,September,2021) https://www.lawteacher.net
CIPESA(December, 2016) State of Internet Freedom in Zambia 2016. Published by CIPESA|
www.cipesa.org

LIST OF CASES
Chipenzi v. The People (HPR/03/2014)
Lange v Australian Broadcasting Corporation (‘Lange’), (1997) 189 CLR 520 (‘Lange’).

LIST OF STATUTES
Constitution of Zambia, (Act No. 2 of 2016) Chapter 1, Volume 1 of the Laws of Zambia.
Electronic Communications and Transaction Act, No. 9 of 2009 of the laws of Zambia.

11