Zambian journalists have long struggled to operate under existing criminal defamation laws. Despite an active media, Section 69 of the county’s penal code is still wielded against journalists for publishing any articles perceived to "defame the president". In January 2003, Arthur Simuchoba, Calvin Kalayi and Chali Nondo of bi-weekly "The Monitor" were arrested for their involvement with an article alleging the president’s brother, Harry Mwanawasa, of corruption. In the same month, Chali Nondo was also charged with criminal defamation for an article alleging the government’s use of a witchdoctor to help capture a former finance minister accused of having stolen public funds. In addition, cases were taken against Zambia’s leading daily newspaper "The Post" and its editor, Fred M’membe, as well for having called former president Chaluba a "thief".

RAP 21 spoke to members of the Zambian media to explore how serious a threat existing criminal defamation laws pose to the country’s independent media, and whether any signs of improvement in press freedom can been seen on the horizon.

According to Sipo Kapumba, information officer of Zambia’s Independent Media Association (ZIMA), there are grounds to feel optimistic about the state of press freedom in the country: "The current government does appear to be more tolerant of the media," he said. Kapumba mentions an incident involving tabloid paper "The People", and charges brought against it for claiming the president had Parkinson’s disease. The charges were dropped when the journalists apologised.

This was not an isolated case. In February 2002, criminal defamation charges against Fred M’membe were dropped by the state prosecution, and in an unprecedented move, President Mwanawasa asked parliament to revoke former President Chaluba’s immunity so he could be tried for charges of theft. In the two instances in 2003 when Section 69 of the Penal Code was used against journalists, neither case has gone to court. Perhaps adding to this improving state of affairs, in November 2002, two important media bills were passed in parliament, although the third, and most important one for print media, was abandoned in its final stages.

Amos Malupenga, deputy news editor of "The Post", is positive about the recent development of the laws, but remains cautious about the overall improvement in press freedom; "So far, the government is showing signs that is it more tolerant of the media, but I am still distrustful of the current administration and its intentions. We are cautious and mindful that the government’s position could turn. For every step forward today, tomorrow can bring two steps back," he concludes.

Civil Defamation Laws: an Improvement over Criminal?

When asked if he found criminal defamation to be the biggest impediment to press freedom in Zambia, the deputy news editor replied that civil defamation could be employed as just a dangerous a tool as criminal defamation laws. "Criminal defamation laws are used by the government as an intimidation tactic. The authorities use these laws as a way to shut you up, to warn journalists if they continue to write like this they will get into trouble. But civil defamation suits are also meant to cripple newspapers," notes Malupenga. " ’The Post’ has suffered a few of these fines in the past, but we are in a better position financially than others around us. Crippling a paper financially is just as much of an impediment to a free and functioning press as is throwing a journalist in jail for criminal defamation. The punishment resulting from defamation laws should seek to inform, to show what a journalist or newspaper did wrong, and to ensure a journalist does not do it again."

Arthur Simuchoba, editor of "The Monitor" appears to agree: "The problem with civil defamation charges is that there is no ceiling on the amount that can be demanded by the plaintiff." This, according to Simuchoba, makes civil defamation potentially more damaging than criminal: "The sky is the limit for monetary compensation from civil defamation. Legal costs further add to the impact of these types of cases."

Combating Criminal Defamation; Members of the Media Take Action

As "The Post" has also been the target of such ’intimidation tactics’, the newspaper has begun a campaign against the use of criminal defamation against media in Zambia. Following the charges brought against the three "The Monitor" journalists for defaming the president’s brother, "The Post" newspaper wrote him a letter arguing there are alternatives to criminal defamation to punish a journalist or teach him a lesson when he makes a mistake. The president’s brother responded to the letter personally, claiming the newspaper’s appeal for the charges of criminal defamation to be dropped was being "considered positively". There has been no further advancement of the case, and although the charges against "The Monitor" have not been dropped, editor Arthur Simuchoba feels confident about the outcome of the case: "I doubt very much the case will go to trial. Although the charges are still in existence, I personally think it will never happen". When asked about the driving force behind its action in favour of "The Monitor", the deputy news editor of "The Post", Amos Malupenga replied: "We feel what happens to our colleagues today could happen to us tomorrow".

Simuchoba of "The Monitor" remains pessimistic about press freedom in Zambia and the media’s ability to change from within: "The media has been fighting for media law reform, but each time we’ve come up with something, the government comes up with something to stop progress."