THERE is certainly no need for the Director of Public Prosecution Mutembo Nchito to appeal the judgement which invalidated Section 67 in the Penal Code.
The law is archaic and runs contrary to the superior law in the Constitution.
But our DPP indicated that he had received advice from Solicitor General Abraham Mwansa to appeal the ruling in the High Court which invalidated Section 67 of the Penal Code.
This follows Lusaka High Court Judge in Charge Isaac Chali’s ruling cancelling Section 67, thereby freeing Daily Nation proprietor Richard Sakala, his production editor Simon Mwanza and Foundation for Democracy Process McDonald Chipenzi.
For the uninitiated, Section 67 relates to publication of false information with intent to cause alarm.
The section was established in 1938 and was amended in 1958 before independence.
This makes it an archaic law as Zambia’s Constitution provides for the supremacy of the constitution under Article 1 (3).
Many countries, including Britain from which it was inherited have removed the law from their statutes.
In his ruling Judge Chali said; “I find and hold that Section 67 does not fit under Article 20 (3) of the Constitution, it goes beyond what is permissible under that clause, I therefore find that Section 67 does not pass the test of being reasonably justifiable in a democratic society.”
Article 20 (1) provides thus: “Except with his own consent, a person shall not be hindered in protection of 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.”
Article 1(3) of the Zambian Constitution entrenches the supremacy of the Constitution by providing thus:
“This Constitution is the supreme law of Zambia and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”
It was on the unequivocal strength of this that Judge Chali made his ruling of quashing Section 67 by quoting the Constitution which is superior to the Penal Code.
It is therefore puzzling that the DPP would like to appeal the ruling and attempt to bring back Section 67 which runs counter to the supreme law of the land.
It is even more puzzling that when other countries, recently Uganda and Zimbabwe, are removing this particular law from their statute books to allow citizens to enjoy the freedom of expression themselves unhindered, our DPP would want it back.