A sad day for democracy in Zambia

Yesterday, Darius Mukuka, 35, a driver and father of four, was sentenced to 18 months in prison with hard labour by the Chief Resident Magistrate in Ndola, Zambia.

He had been charged and convicted under Chapter 87 of the Laws of Zambia ("The Penal Code Act"), Division I ("Offences Against Public Order"), Section 69 ("Defamation of President"):

Defamation of President

69. Any person who, with intent to bring the President into hatred, ridicule or contempt, publishes any defamatory or insulting matter, whether by writing, print, word of mouth or in any other manner, is guilty of an offence and is liable on conviction to imprisonment for a period not exceeding three years.
(No. 6 of 1965)

On the evening of Sunday, March 22 2009, Mr. Mukuka had apparently been in a bar in Ndola when an item concerning the Zambian president had come on the ZNBC evening news. According to reports in The (Zambia) Post, the Zambia Daily Mail and the Times of Zambia, Mr. Mukuka had then referred to the President by a highly derogatory Bemba epithet and expressed his opinion about the President's conduct and performance. Literally translated this is what Mr. Mukuka said: "This [Bemba epithet referring to the President]...what is he saying...he's lying to people...he's failed to govern the nation."

Was Mr. Mukuka insulting towards the President? Undoubtedly. There is no ambiguity about the Bemba epithet that he used and the way in which he used it. However, in the legal context, an insult in and of itself does not constitute defamation.

Was Mr. Mukaka defamatory towards the President? Possibly. Defamation in the legal sense must exhibit all of the following characteristics: (1) publication (to third parties); (2) falsehood; (3) malicious intent; and (4) reputational or other damage.

Characteristic (1) is not in dispute: Mr. Mukuka definitely made his remarks in the presence of, and for the apparent benefit of, several other people present at the scene. Characteristics (2), (3) and (4) are not so clear-cut.

Characteristic (2), falsehood: Mr. Mukuka's statement about the President "lying to people" was in apparent reference to earlier remarks made by the President in the news item. Mr. Mukuka's statement would therefore have to be considered in the light of those earlier remarks and judged accordingly. On one end of the scale, Mr. Mukuka's statement could well have been justified simply on the grounds of human fallibility (on the President's, or perhaps his speechwriter's, part)--someone could have made an innocent mistake. And there are numerous other possibilities between that and the other end of the scale (malevolent purpose).

Characteristic (3), malicious intent: Was it Mr. Mukuka's "intent to bring the President into hatred, ridicule or contempt". Perhaps, but there appear to be mitigating factors in this respect. For instance, Mr. Mukuka was apparently under the influence of alcohol at the time.

Characteristic (4), reputational or other damage: Did Mr. Mukuka's in fact "bring the President into hatred, ridicule or contempt" and thereby damage his reputation or good standing? Recall that all of these damaging effects are with reference to that legal factotum, the "right-thinking" or "reasonable" person. Would any right-thinking, reasonable person's estimate of the President have been lowered if he had heard Mr. Mukuka's words on that Sunday evening? Or would he have instead, for example, dismissed them as the words of a man who had had a little too much to drink?

Evidently, there is a great deal for good lawyers to play with on both sides of this case.

It's also worth noting that, apart from the crude Bemba swearword, in many ways Mr. Mukuka's words are quite tame compared to the everyday rhetoric of Zambian politicians, including the incumbent President.

But all of that is beside the point.

The point is this: In a liberal, pluralistic democracy, leaders can and should expect to be subjected to constant scrutiny and criticism. This is not to lend support to gratuitous insults, but rather to recognise that a free society must tolerate, and indeed cultivate, dissenting opinions, some of which may be expressed in ways that certain people, perhaps even most people, will find unpalatable. And public persons, particularly leaders, should expect (if not necessarily enjoy) a lot of comments and opinions on their conduct and performance. This is the price society must pay for freedom and accountability--and progress. The alternative is ghastly and one that Zambians are well acquainted with from Zambia's comparatively short independent history: a leadership that becomes increasingly aloof and unaccountable and a people that become increasingly disenchanted and despondent.

Update (26 May 2010):

Apparently, the President has pardoned Darius Mukuka for his offence. This is highly commendable. However, the dodgy defamation law is still on the books. It should be scrapped.