archaic and oppressive laws; a relic from colonial times – the mast online
French philosopher, Montesquieu once posed: “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” And American lawyer and former POTUS Thomas Jefferson once said that “the minority [the weak in society] to have equal rights, which an equal law must protect, and to violate would be oppression. ”
It is unfortunate that to this day we still have laws that separate the weak from the powerful in society and that there are different laws for each category. On the perspective today, the consideration is on oppressive laws. According to the famous English playwright William Shakespeare, when there is, “a law for the lion and the ox is oppression.” The laws must be the same and everyone must be subject to them.
From the start, it should be understood that the Zambian legal system was bequeathed to it by the former colonial master. It is a system that separated citizens on the basis of race – white “majority” settlers and indigenous black “minority” people. The laws sought not only to protect governors, but also to promote white supremacy.
Today, Zambia is a sovereign country ruled by the indigenous black people. However, nothing has changed canonically. Although whites no longer govern, it is now the governors who are protected by law, in what can be called the “superiority of black governors”. The law protects both the rulers and the ruled. And no one can justify why our brothers would be oppressed by our own black governors in the name of justice.
It actually defies logic that the same evils that freedom fighters fought against during the liberation struggle still prevail 57 years after gaining independence. Successive governments, from the United National Independence Party [UNIP], to the patriotic front [PF], did not seek to change the status quo.
Although they complain about oppressive laws when they are in opposition, when politicians form government they are silent. The reason is simple; it is because the law serves them better in government than in opposition. Steven Erikson postulated that “the laws decide what form of oppression is allowed, Lord. And because of this, these laws are the servants of those in power, for whom oppression is given as a right over those who have little or no power. Unfortunately, when politicians are not in government, they still suffer the same fate they had the power to redefine.
There are a number of oppressive colonial laws that must be repealed. In addition to the Law on Public Order, the other most oppressive laws are provisions of the Law on the Criminal Code, Cap. 87 of the laws of Zambia. And among them are articles 69, 53-57, 191-197.
Because today, there is so much interest in article 69 of the Penal Code, which provides for the defamation of the president’s crime and is punishable by deprivation of liberty of up to three years. This criminal charge has been abused by governors to stifle dissent among the population. This law is not only oppressive but archaic. A defamation complaint is personal in nature because it concerns his reputation. It is therefore important that the injured party takes action, as opposed to a third party filing a complaint on their behalf.
The Republican Constitution submits judicial immunity to the president or to any person exercising presidential functions. Article 98 of the Constitution provides that: “(1) No person may initiate or prosecute civil proceedings against the President or a person exercising executive functions, as provided in Article 109, for any act performed or omitted by President. or this person in a private capacity during the term of president. (2) The President may not, in his private capacity, while exercising his functions as President, initiate or continue civil proceedings against any person. “
There is an old saying that “what is good for the goose is good for the eyes”. So if the president can’t be sued, he shouldn’t sue either. And no one should act on his behalf, especially on matters that may be of a personal nature.
It is actually laughable that we can have such laws in modern times. This author opposes the idea of criminal liability in alleged defamation cases because it is vindictive in nature. And most complaints are made by political agents, for partisan interests. If criminal defamation is quite punitive, civil defamation aims, on the other hand, to compensate the injured party. I will come back to this notion in later publications.
Most progressive societies have abolished these mundane laws, which only serve the interests of political actors at the expense of governors. In the landmark decision in New York Times v Sullivan, 376 US 254 (1964), the Court made a number of statements regarding defamation cases involving government officials. The court ruled that “public officials must have thick skin. Whether public officials are allowed to successfully prosecute any criticism of the public service; i) It will not be recognized that they are servants of the people, (ii) There will be assortment on matters of freedom of expression of public interest.
In the above case, a government official sued a newspaper company. The court further stated that “A newspaper cannot be held responsible for making defamatory false statements about the official conduct of a public official, unless the statements were made with genuine malice.” In conclusion, it was said that the debate on public issues needs to be “uninhibited”, solid and open and that it can include vehement, caustic and sometimes disagreeably sharp attacks on government and public officials. Public officials must therefore accept criticism, as opposed to hiding in archaic laws.
A decade later, the court rendered another decision in Gertz v Robert Welch Inc, 418 US 323 (1974), where it was said that “an individual who decides to seek government office must accept certain necessary consequences of such involvement. in public affairs. It runs the risk of being scrutinized more closely than it would otherwise. People classified as public figures are in a similar situation. Although the foregoing generalities cannot be obtained in all cases, the media are empowered to act on the assumption that public officials and public figures have voluntarily exposed themselves to an increased risk of injury as a result of lying. concerning them.
Although Zambia’s case law on this issue may be slightly different from that of the United States, it still respects freedom of expression. In the Resident Doctor Association c / Attorney General (2003) ZR 88, it was held, inter alia, that “the right to freedom of expression… is not only fundamental, but at the heart of the concept and ideal of democracy. “.
And in the previous case of Michael Chilufya Sata v Post Newspaper et al 1993 / HP / 1395, former Chief Justice Ngulube stated: “Let me make it clear that I fully agree with the view that the constitutional provisions should be recognized. in Article 20 and I accept that impersonal criticism of public behavior resulting in damage to official reputation does not generally entail liability if there is no real meanness. Freedom of speech must be an encouragement for democracy to thrive.
In conclusion, let me borrow the words of Judge William J. Brennan Jr. who held that “the debate on matters of public interest must be uninhibited, robust and wide open and [further that] vehement criticism and even mistakes are part of the price a democratic society pays for freedom. Because today I’m going to stop here; it’s Goodbye, from EBP.
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