Comedy of errors continues

June 17, 2010

A veteran Zambian journalist and press freedom champion, Fred M’membe, was slapped with a 4 months prison sentence by a Lusaka magistrate for having published in the Post newspaper a commentary entitled “The Chansa Kabwela Case: A comedy of errors.” The article was authored by American based Zambian law Professor, Muna Ndulo. The article was critical of the Zambian president, the police and the prosecution for having instigated and directed the prosecution of Post reporter Chansa Kabwela.

The Zambian president was criticized for failing to exercise restraint, the police for their lack of objective judgment in arresting Chansa and the director of public prosecutions for not exercising his prosecutorial discretion to decline prosecution. The Chansa Kabwela case did not at all support a charge of criminal obscenity and she was accordingly acquitted. Chansa Kabwela was arrested on 13 July 2009 for “distributing obscene materials”. She sent government officials photographs of a woman giving birth in a hospital parking lot without any medical help. President Rupiah Banda declared that the photographs were pornographic and directed that the person responsible be arrested. Chansa simply wanted to show government officials the extent of the collapse in the public health sector.

Despite her acquittal, Fred was charged with and convicted of contempt of court for publishing the Muna Ndulo article “while a judicial proceeding was pending”. According to the offence making provision of the Zambian penal code, a contemptuous publication should misrepresent the proceedings, be capable of prejudicing any person or be calculated to lower the authority of the person before whom the case is being heard. This charge is equivalent to the British strict liability form of contempt.
It is shocking how the magistrate convicted Fred on contempt of court charges. As one law lord stated, “justice is not a cloistered virtue”. Contempt of court should never be used to prevent criticism of the judiciary or the justice delivery system as a whole. It is the right of every person to make fair comment, even scathing commentary, on matters of public interest. Nothing stops anyone from saying that the police were mistaken in arresting a particular suspect or the prosecution made an error in deciding to prosecute a certain accused as long as this is done in good faith. By extension “insulting the president” offences on Zimbabwean statute books are archaic and should not be used to prosecute persons criticizing the president’s governance in matters of public interest. As public figures government leaders are not immune from criticism.

The power to punish the strict liability form of contempt is the means by which the criminal justice system protects itself from publications that might unduly influence the results of litigation. A balance must be achieved between the need to protect the right to a fair trial and free speech. There is concern that in arriving at their decisions judicial and law enforcement officers must not be influenced by sensational media reports. Publications that might realistically create bias in the mind of the arbiter or unfairly tilt criminal justice procedures in favour of one party may be deemed contemptuous. Contempt of court will be founded where the publication has created a substantial risk of serious prejudice. The prejudice must be of such a nature that it could tip the final verdict one way or the other.

The risk of prejudice may be assessed by considering who will judge the matter and whether the comment is on a matter of public interest. The Chansa case was tried by a magistrate and was a public interest matter on the Zambian health delivery system. Magistrates and judges are fulltime professional lawyers and are unlikely to be influenced by media reports. As Lord Salmon stated in the case of Schering Chemicals v Falkman, “I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would be unfit to be a judge.” When the magistrate acquitted Chansa Kabwela he did so on the evidence before him and arguments submitted by counsel and could not have been unduly influenced by Muna Ndulo’s article which was critical of the police and the prosecutor and not the judge or jury.

The decision to prosecute involves an exercise of reasonable discretion and consideration of the public interest and can therefore be legitimately criticized or commented on at the time it is taken. As public officials, prosecutors and the police must tolerate a greater degree of criticism. There is greater latitude accorded to hostile comments relating to the prosecution especially if they deal with issues of principle in public interest cases and do not purport to settle disputes of fact. So if the prosecution is not exercising its prosecutorial discretion, practicing selective prosecutions and using archaic or discredited laws their actions will always be the subject of debate even pending judicial proceedings. The Muna Ndulo article was not an attack against witnesses or the accused, but the lack of prosecutorial independence and discretion as well as the partisan attitude of the police in dealing with the Chansa case. It was a legitimate comment which should never have been treated as contempt of court by the director of public prosecutions. The conviction and sentencing of Fred M’membe is therefore a continuation of the tragic comedy of errors which has led to the unfortunate incarceration of a celebrated and respected journalist. It is hoped that when a superior court hears the appeal against judgment the right to criticize the prosecution or the justice delivery system will be protected and the right to a fair trial and free speech will be fairly balanced.

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