By Isaac Mwanza
I have watched time and again the video circulating on social media where UPP leader, Dr. Saviour Chishimba, attacks the morality and standing of President Lungu. Before I volunteer to offer my view on whether Dr. Chishimba defamed the President, I want to point a few legal authorities:
The Zambia Police, in its pursuit of political cases which it has been taking to court, should always bear in mind the leading case decided by the Supreme Court in 2008 of Attorney General v Roy Clarke.
The brief facts of this case were that Mr. Clarke, on 1 January, 2004, submitted a satirical article entitled Mfuwe, over his satirical writing in which he called the President and two minister’s names. Mr. Clarke referred to some government leaders as “Muwelewele”, long legged giraffe, red-lipped, long fingered baboons and knocking knees. The article was written in crude language tinged with his dislike for the President and the government and contained descriptions of the physical features of the characters the respondents was writing about and allegations of rigging of elections by the President and some ministers.
The Supreme Court having noted Mr. Clarke to have been an old man who has lived long in this country and married to a Zambian woman observed that “despite this long stay in Zambia and actually living and rearing a family with a Zambian woman, the respondent (Clarke) strikes us as eccentric old man, who does not, in the least, care about or reflect on, the effect of what he writes. The respondent is also an old man, who has insulated himself from the realities of the Zambian cultural environment and is impervious to the cultural values and norms of the Zambian people,…The respondent, despite his old age also appears to have warped ideas of the freedom of expression.”
Can this be the case of Dr. Saviour Chishimba?
In the 1973 US case of De Jonge v State of Oregon, the Federal Supreme Court of the United States said:
“The right to support or criticize governments and politicians is fundamental to the democratic way of life and the freedom of speech and expression and is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of civil and political institutions…
So what is the issue of Dr. Chishimba? Is it legally defamation or merely his disrespect for President Lungu?
Having watched and carefully listened to Saviour Chishimba clip, I don’t find defamation of the President but total disrespect for Edgar Chagwa Lungu. The UPP leader had a constitutional right to express how he views Mr. Edgar Lungu no matter how unpopular, obnoxious, distasteful or wrong, it is within the ambit of freedom of speech and expression, provided there is no advocacy of/or incitement to violence or other illegal conduct.
However, I totally find that kind of disrespect of President Lungu unZambian and uninspiring to young people who look forward to elderly people like Dr. Chishimba for inspiration. It doesn’t matter who says who says what Dr. Chishimba said, if it was said by President Lungu to any other leader, I would find those remarks disrespectful.
On the conduct of Roy Clarke, the Supreme Court had this to say: “In Zambia, one can criticize or poke fun at the head of state and government leaders or indeed elders but his must be done in felicitous language and not in the crude language the respondent used. We have no doubt that in every other country you cannot say and write things using words and expressions that are not in consonance with the cultural values and norms of the people of that country.”
I therefore think the Zambian Police must not be used to incarcerate people even in cases they know they may be bound to lose in court. That is called persecution. In the same vein, Dr. Chishimba and other opposition leaders must learn to show respect for the President and for each other. Again, I think this country needs dialogue between leaders where they can frankly discuss issues than issuing disparaging remarks against each other. Since he Church seem to have biased positions, its time for individuals and institutions such as ZCID to take the front seat and move this dialogue.
I want to end by reminding President Lungu’s supporters and investigative wings who may be tempted to pounce on Dr. Chishimba by borrowing the words of Supreme Court when it reaffirmed:
“And in this judgment, we re-affirm what we have said in the previous cases 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 that those who hold public offices must be prepared, to suffer, and be tolerant, of criticism.”