Global Freedom of Expression

Español العربية

Chipenzi v. The People

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    December 4, 2014
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    HPR/03/2014
  • Region & Country
    Zambia, Africa
  • Judicial Body
    Appellate Court
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Content Regulation / Censorship, National Security, Public Order
  • Tags
    False News, Human Rights

Content Attribution Policy

Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:

  • Attribute Columbia Global Freedom of Expression as the source.
  • Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing.

Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.

Case Analysis

Case Summary and Outcome

The High Court of Zambia found that Section 67 of Zambia’s Penal Code, prohibiting the publication of false information likely to cause public fear, violated the Constitution as it did not amount to a reasonable justification for limiting the freedom of expression.


Facts

On December 10, 2013, the Applicants published an article in the Daily Nation, alleging that Zambia’s secret police had recruited a number of foreign militia into the main stream of police service. The government subsequently arrested the Applicants and charged them with the violation of Section 67 of the Penal Code. The law imposes maximum of three years imprisonment for dissemination of false information “likely to cause fear and alarm to the public or to disturb the public peace.”

The Applicants challenged the constitutionality of Section 67, arguing that the law was inconsistent with Article 20 of Zambia’s Constitution, which guarantees “[The] freedom to impart and communicate ideas and information without interference.”

On the other hand, the government contended that the criminal prosecution conformed with Article 20(3) of the Constitution as a reasonable measure required for the purpose of protecting the reputations, rights and freedoms of others.


Decision Overview

Justice Chali delivered the opinion of the Court.  The main issue was whether Section 67 of Zambia’s Penal Code was a reasonable justification in limiting the freedom of expression by imposing criminal sanctions for publishing false information likely to cause public fear.

The Court first analyzed the scope of the law. It held that Section 67 was impermissibly overbroad as it was capable of not only prohibiting false news but also those with honest beliefs as to the truthfulness of their statements.  According to the Court, the law virtually restricts “any statement which does not meet the majority definition of truth and lends force to the argument that the law could be used or abused in circular fashion essentially to permit the prosecution of news which is unpopular in the ears of those in authority.”

Furthermore, the Court ruled that the law violated the Constitution because it allowed the government to shift the burden of proving the elements of the crime, as it required the accused to prove the lack of knowledge of the falsity of his or her statement.

Also, the Court rejected the notion that the law was reasonably related to the protection of public order because the liability for prosecution and conviction was not dependent upon any actual or imminent occurrence of public fear or disturbance.  According to the Court, the law was merely intended to prevent remote and uncertain dangers arising out of dissemination of false news.

For forgoing reasons, the Court invalidated Section 67 of Zambia’s Penal Code for being inconsistent with the constitutional protection of freedom of expression.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The High Court of Zambia by invalidating Section 67 of Zambia’s Penal Code limited the scope of government’s restrictive laws on freedom of expression to only those that are reasonably justified to protect the reputations and rights of others, and are narrowly tailored in order to avoid imposition of criminal liability for mere publication of false information.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • ACHPR, art. 9

    The African Charter guarantees the freedom of expression: “1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express opinions
    within the law.”

  • Declaration of Principles on Freedom of Expression in Africa, Principle I (Oct. 2002)
  • ICCPR, art. 19

National standards, law or jurisprudence

  • Zam., Murono v. The People, (2004) ZLR 207 [SC]

    The Supreme Court of Zambia unanimously held that the it was unconstitutional to shift the burden of proving the elements of a crime on the accused.

Other national standards, law or jurisprudence

  • Uganda, Obbo v. Attorney General of Uganda, (2004) UGSC 1 (Feb. 11, 2004)

    The High Court of Zambia followed the Supreme Court of Uganda’s legal reasonings in Obbo, in which the Court invalidated a criminal statute penalizing the publication of false news.

  • Can., R. v. Zundel, [1992] 2 S.C.R. 731

    The High Court of Zambia adhered the Supreme Court of Canada’s principle that the deliberate publication of false information should not the sole reason for precluding the benefit of the constitutional guarantee of free speech.

  • Zim., Gova v. Minister of Home Affairs, (2000) ZWSC 36/2000
  • S. Afr., Thebus v. The State, (2003) AHRLR 230 [SACC]

    The High Court of Zambia followed the Supreme Court of South Africa’s test to analyze the constitutionality of a restriction on freedom of expression, that is whether the limitation is reasonable and justifiable.

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision of the High Court of Zambia binds the subordinate magistrate’s courts and local courts to invalidate any criminal prosecution or conviction under Section 67 of the Penal Code.

Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

The decision is among a few rulings by national courts in Africa that have invalidated laws that impose criminal sanctions against mere publication of false information.

Official Case Documents

Attachments:

Have comments?

Let us know if you notice errors or if the case analysis needs revision.

Send Feedback