The Zambian media have never been constitutionally protected. Press freedom is not expressly guaranteed but is inferred from the general freedom of expression, which includes freedom to hold opinions, receive and impart and communicate ideas and information without interference, whether to the general public or to any person or class of persons. In addition, Article 20 provides: "Subject to the provisions of this Constitution no law shall make any provision that derogates from press freedom."
Laws, including those which may undermine freedom of expression, are assumed to be constitutional unless declared otherwise by the courts. Since the introduction of the Bill of Rights in 1963, no government has reviewed and repealed unconstitutional laws. It has been left to citizens to challenge such legislation through the courts.
Since the beginning of the 1990s, coinciding with the emergence of independent media, a number of cases have gone to court seeking to expand the boundaries of freedom of expression. In William Banda v the Attorney General (1992/HP/1005) the petitioner was a member of the United National Independent Party (UNIP). His party applied for police permits, pursuant to the provisions of section 5(4) of the Public Order Act, to hold public rallies. On all occasions his name was deleted from the list of speakers and no reasons were given. The petitioner argued that his freedom of expression had been violated. It was argued for the state that the petitioner was a non-Zambian and hence should not be allowed to address rallies, that members of the ruling Movement for Multi-Party Democracy (MMD) were against his speeches and that the petitioner's previous speeches were provocative. The court found that the petitioner's right to freedom of expression had been violated. The regulating officer had not properly exercised his discretionary powers.
The court observed: "The freedom of expression rests on the assumption that the widest possible dissemination of information from divergent and antagonistic sources is essential to the welfare of the public. Such freedom is the foundation of a government of a free people. The purpose of such a guarantee is to prevent public authorities from assuming the guardianship of the public mind." (Ibid.,p.14)
On 17 June 1995 the Minister of Information and Broadcasting announced that the Cabinet had given him 60 days in which to present a draft Bill on the Media Association of Zambia (MAZ). The MAZ would ensure that no media organization could operate without subscribing its staff to the association. Anyone who withdrew from the association would lose his or her status as a journalist.
PAZA has since sought judicial review of the government's decision to create such an institution. PAZA's argument is that as a representative of journalists and as an institution which would be affected by the decision, it was never consulted. The decision to create MAZ is in bad faith and not in furtherance of democratic ideals, among them freedom to form and belong to associations of one's choice. The government's decision has since been stayed by the court until the case is determined.
One of the issues raised by the petitioners in Zambia Democratic Congress vs. Zambia National Broadcasting Corporation,Times of Zambia Limited, Zambia Daily Mail Limited and the Attorney General,(1995/HP/3251) is that they have been denied coverage by the Zambia National Broadcasting Corporation. The corporation has been invited to cover a number of their activities, but on several occasions they have not attended. Similar activities by the ruling party have been covered. Where the ZNBC has attended, the events covered have not been covered. Such coverage as there has been is often negative.
The case of Arthur Wina and Six Others and The Attorney General (1990/HP/1878) clearly demonstrates this problem. On 1 November 1990 the then President, Kenneth Kaunda, issued a directive to government-owned media not to give coverage to activities of the MMD, which was calling for an end to one-party rule. The petitioners challenged the directive on the grounds that it was discriminatory and violated their right to freedom of expression. The High Court found for the petitioners and held that the directive was unconstitutional.
Commenting on the absence of regulations to ensure fair access to and coverage by the media of all political parties, the court observed: "This then brings us to the next point, namely how newspapers of public ownership such as the ones this judgment has been concerned with are supposed to operate." The court concluded: "My considered answer to this question is that in the case of newspapers they are supposed to be run on the basis of journalistic principles and ethics free from any outsider's interference. Those principles dictate the coverage of all newsworthy events regardless of the source of such news. Anything less than this... is not acceptable from a public news medium -print or other."(Ibid.,p.26)
The traditional defences of justification, fair comment privilege and qualified privilege are available, but some positive inroads have been made by the Defamation Act. In section 6 the defence of justification will not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation, having regard to the truth of the remaining charges. Similarly, in section 7, where the defendant has pleaded fair comment as a defence, the defence will not fail by reason only that the truth of each and every allegation of fact has not been proved, if the expression of opinion is fair comment, having regard to such of the facts alleged or referred to in the words complained of which are proved.
In the case of Michael Sata vs. Post Newspapers Limited (1992/HP/1395 and 1804 and 1993/HP/821), the Chief Justice, sitting as an ex officio judge of the High Court, considered some of the approaches adopted in developed democracies. The plaintiff was at the material time Minister of Local Government and Housing. The court in particular considered New York Times vs. Sullivan (376 US 254), Derbyshire County Council vs. Times Newspapers Limited (1993 (2) W.L.R. 449) and the Australian case of Andrew Theophanus v s. The Herald & Weekly Times and Another (F.C. 94/91). The court concurred with the approach in the Australian case and rejected the concept of malice introduced in Sullivan "to the extent that it sought to legalise character assassination of public officials or to shift the burden of proof so that knowledge of falsity or recklessness should be proved by the plaintiff and to a degree of convincing clarity" (1992/HP/1395 and 1804 and 1993/HP/821 at p.20).
The court was in a dilemma. The Constitution guarantees both freedom of expression and the right to one's reputation without distinction as to whether such reputation belongs to a private or public individual. The court observed: "I have come to the conclusion that there is no need to formulate a new set of principles to impose new fetters on the right of the public officials to recover damages. However, in order to counter the inhibiting and chilling effect of litigation, I am prepared to draw a distinction between an attack on the public conduct of a public official and imputations that go beyond this and attack the private character of such official which attack would be universally un-sanctioned. I am also prepared, when considering the defence of fair comment on a matter of public interest arising from the conduct of a public official, to be more generous and expansive in its application." (Ibid.,pp.23-24)
The court proceeded to consider what could be a "more generous and expansive application" of the defence and observed: "...where the allegation complained of can properly be regarded as comment on the conduct of a public official in the performance of his official duties or on conduct reflecting upon his fitness and suitability to such office, freedom of speech and press can best be served in Zambia by the courts insisting upon a higher breaking point, or a greater margin of tolerance than in the case of a private attack before an obvious comment based on facts which are substantially true can be considered unfair." (Ibid.,p.24)
It was noted that the chilling effect of litigation would be considerably eased by the courts' constantly seeking to promote freedom of speech and the press by keeping a careful eye on the size of awards which are perhaps the true chilling factors if they involve any exemplary or punitive element.