The case in which Daily Nation proprietor Richard Sakala, his production editor Simon Mwanza and FODEP executive director MacDonald Chipenzi are charged with publishing false information with intent to cause alarm and fear, has been transferred to the Lusaka High Court for constitutional determination.
This follows an application by defence counsels for the defendants who raised constitutional issues and argued that Section 67 of the penal code under which the trio was charged was arbitrary and excessively invaded the enjoyment of guaranteed freedom of expression under article 20 of the Constitution of Zambia.
They further submitted that to criminalize free speech by imprisonment of three years under Section 67 was excessive, disproportionate and subject to abuse by the people in authority and were therefore unconstitutional.
“We surmise that the application by Sakala and Mwanza is neither frivolous nor vexatious but to the contrary raises important constitutional issues which would benefit the public at large”
“ It is therefore the appellant’s prayer that the Honourable Court refers this matter to the High Court for determination of the constitutionality of the Section 67 of the Penal Code under section 23 (2) of the Constitution of Zambia” they said
They said should the High Court hold that there was nothing wrong with Section 67, it will be open for the High Court to determine whether the alleged facts as contained in the indictment are well protected by the provisions of Article 20 (1) and (2) of the Constitution of Zambia.
In his ruling yesterday, Magistrate Lameck Mwale said he agreed with submissions by defence counsels that the matter has raised a lot of issues of national interest which border on the constitution and that it would only be fair to refer the case to the High Court for constitutional determination. “This matter has raised a lot of issues of national interest and I agree with grounds of submission by defence counsels of the accused, so I will refer the matter to the High Court for its opinion,” said Mr Mwale. Chipenzi, Sakala and Mwanza are alleged to have, on December 10 2013 jointly while acting together published a false article in the Daily Nation stating that “The secret police recruitment has been condemned as a conduit of fusing foreign trained militia into the mainstream police service’.