Africa-Press – Zambia. 1. Yesterday, amidst much pomp and fare, President Hakainde Hichilema announced the abolishment of section 69 of the Penal Code Act, Cap 87 of the laws of Zambia. This was immediately followed by applause from some members of civil society who claimed that the abolishment will greatly enhance democracy in Zambia, as the law had been used by various successive regimes to stifle freedom of expression as enshrined in the Constitution. But will it?
2. Our position on the proposed repeal of retrogressive laws such as criminal defamation of the President and the Public Order Act, has always been consistent. We have always argued that it is not really particular laws that stifle our fundamental freedoms and liberties as enshrined in the Constitution. Rather, it is the appetite by successive regimes to use the law to stifle people’s freedoms and liberties that is the problem, because for as long as a regime has appetite to trump on the liberties and freedoms of it’s citizens, it will always find a law to abuse, no matter how remote.
3. So from our standpoint, we would have been happier if, instead of President Hakainde Hichilema announcing the repeal of the law on criminal defamation of the President, he had instead announced the repeal of his regime’s appetite to use lawfare to stifle the liberties and freedoms of citizens. That is because even in the face of the abolishment of section 69 of the Penal Code, for as long as President Hakainde Hichilema’s appetite to stifle criticism is not repealed, he will find other laws to use to stifle decent. As a matter of fact, in the past few months, the President and his Police Force had already made the transition from using section 69 of the Penal Code Act, Cap 87 of the laws of Zambia to using section 65 of the Cyber Security and Cyber Crimes Act No. 2 of 2021.
4. The only difference between the abolished law and the new law, is that the former talks about defamation of the President while the later talks about using hate speech against the President. Otherwise the intent of the two laws is the same; to harass anyone who wants to criticize the President. When l was kidnapped by the Zambia Police Force a few months ago, and held incommunicado from my relatives, friends and lawyers for 6 days, l was finally charged not with criminal defamation of the President, but with using hate speech against the President under section 65 of the Cyber Security and Cyber Crimes Act No. 2 of 2021.
5. Suffice to mention that up to this day, the State has failed to present the docket to court so that the case can take off. Do you know why? Because the State has no case against me and the sensational arrest was designed to intimidate me and instill fear in me so that l should be afraid to criticize President Hakainde Hichilema. On the other hand, detaining me for a prolonged 6 days without being charged was designed to exact as much extra-judicial punishment as possible, knowing fully well that the case is not prosecutable and cannot stand in court. They avoided charging me for 6 days because they knew that without being charged, you cannot get police bond or apply for bail. So everything was specifically tailored to achieve maximum harassment. There is actually a word which is used to describe a President’s use of the law to fix political opponents; it is called lawfare.
6. What most people might not realize is that the repeal of the defamation of the President law as well as the proposed amendment to the Public Order Act will actually better position President Hakainde Hichilema to stifle the liberties and freedoms of the Zambian people. Sounds like a strange proposition right? Well, let me explain. You may wish to note that these repressive laws have been on our statute books for a very long time, and have been abused by successive regimes to fix political opponents. What it means is that these laws have been thoroughly litigated in various courts and there is adequate case law to that effect. Most of the available case law regarding these repressive statutes does not favor the State, which means President Hakainde Hichilema has limited manoeurebility in his quest to stifle people’s liberties and freedoms, under the old repressive laws.
7. However, by replacing existing repressive laws with new repressive laws, it means that there is no sufficient case law available to curtail the abuses of the current regime. And judging by the calibre of existing jurists, whom unlike their predecessors of yesteryears, are so woven into State-sponsored opulence that they do not appear to have the backbone to pass any judgement against the State, it is unlikely that any usable case law will be generated anytime soon. This agenda of replacing old repressive laws with new repressive laws was actually conceived and began to be implemented by the previous PF regime, and has been embraced and nourished by President Hakainde Hichilema.
8. To answer the earlier question of whether there is anything to celebrate about President Hakainde Hichilema’s recent abolishment of section 69 of the Penal Code Act Cap 87 of the laws of Zambia, the answer is a definite no. What might be worth celebrating however, is if the President made an announcement tomorrow that he has abandoned his appetite to use lawfare to fix his political opponents and critics alike. That he will no longer arrest his critics and keep them for days without a charge because he knows deep down his heart that he has no case against them, but still wishes to impose as much extra-judicial punishment as possible. Otherwise so far, in terms of abrogation of the rule of law, the current New Dawn regime has embraced and nourished the nefarious agenda set by the previous PF regime, albeit much more clumsily.
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