LUSAKA High Court Judge Isaac Chali yesterday passed a landmark judgment when he struck down section 67 of the Penal Code which he said was incompatible with the democratic dispensation that Zambia was enjoying.
This means that nobody will be prosecuted under the charge, which has effectively been struck out from the law books.
The law, he… said, contradicted the constitutional guarantee of presumption of innocence as well as the enjoyment of the right to freedom of communication.
This was in a matter in which Foundation for Democratic Process (FODEP) executive director MacDonald Chipenzi was arrested along with Daily Nation proprietor Richard Sakala and his production editor Simon Mwanza for allegedly causing the publication of false news with intent to cause fear and alarm.
The trio was arrested when the Daily Nation published a story in which Mr Chipenzi expressed concern at the secret police recruitment which many people feared could serve as conduit of fusing foreign trained militia into the mainstream police.
At the hearing in the Magistrate Court lawyers applied that the matter should be referred to the High Court for constitutional determination. The defence team included, Eric Silwamba, Marshall Muchende from Dindi and company Keith Mweemba, Martha Mushipe, L. Linyama, and Mr. L. Mwanabo.
Making a ruling yesterday Judge Chali said that the law was totally antiquated with antecedents in 13th Century English statutes that created the offence of “Scandalum Magnatum” which was abolished in 1887, “ If it was found to be undesirable by its originators as far back as the 19th Century, can there be justification for its retention by Zambia, two centuries later?” I do not find any such justification. “he said.
“I therefore, find that section 67 does not pass the test of being reasonably justifiable in a democratic society. It contravenes article 20 of the Constitution and is null, void and therefore invalid for unconstitutionality. It follows also that the invalidity and the constitutional guarantee of freedom preclude the prosecution of persons and the criminalization of alleged false statements under section 67,” he said. Mr Justice Chali said a prosecution based on section 67 of the Penal Code is itself inconsistent with the constitutional guarantee and equally invalid.
Judge Chali in his ruling stated that section 67 of the Penal Code offended against the constitutional guarantee of placing the burden of proof of guilty upon the State.
He ruled that the law required the accused to prove lack of knowledge of the falsity of the statement, report or rumour apart from showing that reasonable measures could have been taken to verify the truthfulness of the statement. “The general rule is that in a criminal trial, the onus of proof remains on the State throughout and does not shift to the defence.
The presumption of innocence, he said, was an entrenched constitutional right of an accused person, which required that the prosecution bore the burden of proving all the elements of a criminal charge, “A stipulation, such as is found in section 67 which relieves the prosecution of part of that burden and could result in the conviction of an accused person despite the existence of a reasonable doubt as to his or her guilt. Such stipulation is in breach of the presumption of innocence and therefore offends the Constitution.” he said.