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.