Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Mixed Outcome
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The Supreme Court of Zambia rejected a government attempt to deport a British journalist under section 26(2) of the Immigration and Deportation Act (“the Act”) for writing a satirical article critical of the President of Zambia and two government ministers.
British journalist Roy Clarke appealed a deportation order made by the Minister of Home Affairs following an article he had written characterizing members of the Zambian Cabinet as animals. The High Court nullified the deportation and the Attorney-General appealed.
The Court reasoned that although the deportation did not constitute an infringement of the constitutional right to freedom of expression, it was nevertheless an unreasonable response to the publication of the article because it was “too extreme an action” and “disproportionate”.
On January 1 2004, Roy Clarke, a journalist of British nationality who had permanent residence status in Zambia, published a satirical article which referred to allegations of vote-rigging by the President and two government ministers and, using a reference to George Orwell’s Animal Farm, depicted the officials as animals. On January 5 2004, a statement from the Permanent Secretary in the Ministry of Home Affairs was published in two national newspapers. The statement said that the Permanent Secretary had recommended to the Minister that Clarke be deported, and that the article’s description of the President and Ministers as animals was insulting. The Minister exercised his power and discretion under section 26(2) of the Act and said he would deport Clarke so as to protect national security.
Clarke approached the High Court in Lusaka seeking a review of the Minister’s decision to deport him, a declaration that the deportation order was unconstitutional and an order that the Minister reconsider his decision after giving Clarke an opportunity to be heard in person. Clarke described the article as a satirical one and not one intended to insult the President or the citizens of Zambia. He said that he believed the decision to deport him was taken partly as a result of his nationality and race, and that the decision infringed his right to freedom of expression and of the press in terms of article 20 of the Zambian Constitution (para. 9).
The Minister responded by stating that his decision to deport Clarke was motivated by his belief that Clarke’s continued presence in Zambia was a threat to peace and good order because Clarke’s description of Zambian people in the article as animals could incite hatred and lead to violence (para. 8). Therefore, he argued, Clarke’s conduct fell within the legislative provision at section 26(2) of the Act which states that: “Any person who in the opinion of the Minister is by his presence or his conduct likely to be a danger to peace and good order in Zambia may be deported from Zambia pursuant to a warrant under the hand of the Minister”.
The High Court held that, even though it considered the article “overstretched satire, irritating and insulting” (para. 10), Clarke’s rights to freedom of expression and protection of the law had been infringed by the decision to deport him. The High Court highlighted that as no action had been taken against the newspaper editor, Clarke had been individually targeted, and discriminated against on the grounds of his origin and race.
The Attorney-General appealed the decision to the Supreme Court
The appeal was heard by a full bench, and Chitengi JS delivered the unanimous judgment.
The Attorney-General had four grounds of appeal, three of which related to procedural elements of the judicial review and one to the question of the infringement of the right to freedom of expression. The Attorney-General argued that the right to freedom of expression in the Zambian Constitution was not absolute, and that Clarke’s deportation constituted a legitimate limitation of the right. He said that there needed to be a balance between the private interests in protecting Clarke’s freedom of expression and the public interest in protecting public peace, and that the Court should find that, here, the public interest outweighed the private interest (para. 24).
Clarke submitted that the purpose to be served by section 26(2) of the Immigration and Deportation Act of protecting national security is not applicable to a satirical article (para. 25). He said that there was no factual basis for the claim that Clarke’s continued presence in Zambia or his writing of satirical articles was a threat to public peace and order (para. 27).
Clarke emphasised that his article was satirical, and referred to the Zambian Supreme Court case of Sata v The Post Newspapers 1992/HP/1385 which had established that the standard in interpreting the meaning of the written word is that of a reasonable reader (para. 29). Clarke said that satire should not be interpreted literally, and that the metaphor included in his article should be seen as providing deeper critical insights (para. 29). Clarke argued that the expression of views which may be unpopular or distasteful is protected by the Constitution, and is therefore protected speech unless it advocates or incites violence or other illegal conduct (para. 32). Clarke referred to the U.S. case of De Jonge v Oregon 299 US 353 1973 and submitted that mere criticism of the government cannot constitute a threat to public order.
In respect of determining the justification of a limitation to the right to freedom of expression, Clarke referred to the British case of R v Secretary of State for the Home Department ex parte Brind 1991 1 AC 697 and said that “close scrutiny must be given to the reasons provided as justification for the interference with the right” (para. 45). Clarke submitted that if this “close scrutiny”was applied in the present case then the High Court judge was correct in holding that the Minister was unreasonable in concluding that the article was a threat to public peace (para. 45).
Clarke submitted that it was unreasonable to hold an individual responsible for violent action that may occur as a result of his own peacefully-expressed views. In this respect he referred to the British case of Redmond-Bate v Director of Public Prosecutions 1999 7 BHRC 375 which had held that three women who had preached the gospel to a large audience were not liable for the actions of those who listened to their preaching (para. 47).
In response to the questions about the right to freedom of expression, the Court acknowledged two previous Supreme Court judgments which had emphasised the importance of the right to freedom of expression: Sata v The Post Newspapers Limited and the Resident Doctors Association of Zambia and Others v the Attorney-General (2003) ZR 88. The Court stated 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” (para. 64).
However, the Court concluded that Clarke’s article went beyond what is protected by the Constitution. It held that as Clarke’s speech was not protected, the deportation was not a violation of his right. It said the High Court’s error had been to assume that the right to freedom of expression was limitless and so did not examine whether the deportation fell within the Constitution’s permissible limitations to the right to freedom of expression (para. 67). In addition, the Court held that section 26(2) of the Immigration and Deportation Act was wide enough to allow the Minister to deport an individual in Clarke’s situation because the term “peace and good order” is wider than “national security” (para. 59).
The Court then assessed the reasonableness of the decision to deport Clarke following the publication of the article. He applied the standard of reasonableness established in the British case of Associated Provincial Pictures Houses Limited v Wednesbury Corporation (1948) 1 KB and stated that “if a decision on competent matter is so unreasonable that no reasonable authority could ever have come to it, then the court can interfere” (para. 83). The Court examined the meaning of the satirical article and concluded that the reference to animals in the article was “metaphorical and not literal” (para. 84). The Court therefore held that, as there were other actions that could have been taken against Clarke for what may have been crude and offensive, the deportation was “too extreme an action” and “disproportionate” (para. 85).
However the Court noted that, although it had found that deportation was disproportionate in this case, the judgment should not be read as permitting future crude and insulting satirical articles, and said that Clarke should respect the cultural norms of Zambia (para. 86-92). It explicitly rejected Clarke’s submission that the case should be seen as demonstrating “the extent to which [journalists] can enjoy their freedom of expression”. Instead, the Court said, that the case will “show posterity that Zambians are not ready to allow aliens to show disrespect to their cultural values and norms and disrupt their way of life.” (para. 93) and that Clarke should not be viewed as a martyr seeking to protect free expression but rather as someone fighting for his personal survival (para. 94).
Accordingly, the Supreme Court set aside the decision to deport Clarke because of the satirical article on the basis that the decision was unreasonable, but did not accept that the article fell within the protection given to freedom of expression by the Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court held that the deportation of a foreign national from Zambia was an unreasonable response to the publication of a satirical article but also found that the article itself did not fall within the ambit of constitutionally protected speech. In addition, the judgment is critical of journalists who use insulting language when criticizing government officials in Zambia.
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