Africa-Press – Zambia. SEAN Tembo has asked the Lusaka Magistrates’ Court to refer the matter where he is charged with using insulting language to the High Court for determination of a constitutional question, arguing that the law does not define an insult.
Tembo submits that the offence, contained in Section 179 of the Penal Code, is not defined, and therefore offends Article 18(8) of the Constitution.
In this matter, Tembo is facing two counts of Use of Insulting Language Contrary to Section 179 of the Penal Code, Chapter 87 of the Laws of Zambia.
Allegations in count one are that Tembo, on August 27, 2023, in Lusaka, did use insulting language, stating, “Bally apa akangiwa kuipa. But mu 2026 ngati bantu bafuna kuvotela chipuba chinangu, it’s fine, SET can wait for 2031.” The said words were referred to the President of the Republic of Zambia, Hakainde Hichilema.
In count two, allegations are that Tembo, on October 17, in Lusaka, did use insulting language, stating, “Bally is selling a few bags of ZNS mealie meal using Shoprite, hoping to create a perception of low price is equal masturbation.” The words were referred to the President of the Republic of Zambia, Hakainde Hichilema.
When the matter came up before Chief Resident Magistrate Davies Chibwili, Monday, the State informed the court of the application that was filed by Tembo on September 9, 2025.
In September, Tembo’s lawyer Tresford Chali applied that the matter be taken to the High Court, stating that the Penal Code does not define what constitutes an insult.
“Your Honour, Articles 18(8) of the Constitution states: ‘No person shall be convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law.’ Section 179 of the Penal Code states: ‘Every person who uses insulting language or otherwise conducts himself in a manner likely to give such provocation to any person as to cause such person to break the public peace or to commit any offence against the person, is liable to imprisonment for three months or to a fine not exceeding four hundred and fifty penalty units or to both,’” the application read.
“Your Honour, it is clear from above that the Penal Code does not define what constitutes an insult. What may be an insult to one’s culture may not be to another. The Affidavit in support shows how a State witness in this ongoing trial, PW1, failed to distinguish between what constitutes insulting language, which is criminalized under Section 179 of the Penal Code, and what constitutes disrespectful language, which is not criminal. Your Honour, Criminal Law marks the legal boundary of individual liberty. Offences must be defined clearly so that people know what is and what is not prohibited. Therefore, it is necessary to consider exactly what conduct is prohibited by a criminal offence”.
Chali further said the ongoing criminal proceedings against Tembo should be stayed pending determination of the constitutional issue by the High Court.
“We pray that this matter be referred to the High Court for the determination of the constitutional question which has arisen, that the offence of insulting language, contained in Section 179 of the Penal Code, is not defined, and therefore offends Article 18(8) of the Constitution. We also pray that the ongoing criminal proceedings against the accused be stayed pending determination of the constitutional issue by the High Court. We shall forever humbly pray,” read the application.
In response, the State said they were saddened by the application but were ready to give oral submissions.
“We are saddened to receive the application by the defence filed on September 9, 2025. I received this application a month ago. So, I was waiting for the court’s guidance because they just filed. I have gone through the application, and I can respond. I am ready to respond now,” said the State.
However, Magistrate Chibwili adjourned the matter to today, for the State to respond to the application made by Tembo’s lawyer.
“Because of this application, the witness will be excused until we deal with this matter. I will give you today so that you can make your submission tomorrow. I am going to adjourn the matter to tomorrow for continued trial,” said Magistrate Chibwili.
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