Criminalising dissent: Why Zambia must repeal sedition before it buries our democracy
By
Prof. Cephas Lumina
There is a quiet contradiction at the heart of our democracy. On paper, the Constitution guarantees freedom of expression. In practice, colonial-era sedition laws continue to criminalise it. That contradiction is no longer sustainable.
The continued existence and application of sections 57 to 62 of the Penal Code Act (Cap 87) is not merely outdated. It is constitutionally suspect, historically discredited, and politically dangerous—a stark reminder that despite decades of independence, the shadow of colonial rule still lingers in our statute books. The urgency to repeal these provisions has been building for years. Today, it is undeniable.
This urgency is sharpened by the High Court’s landmark decision in Chipenzi and Others v The People (2014), which struck down section 67 of the Penal Code—the so-called “false news” provision—as unconstitutional. That judgment did more than invalidate a single offence. It exposed a deeper constitutional flaw in the country’s public order laws and rendered the sedition provisions vulnerable to the same fate.
Yet, despite this, they remain—and are actively being used.
A colonial weapon that outlived colonialism
To understand why sedition must be repealed, we must first understand what it is. Sedition is a concept inherited from English common law, developed in a time when criticism of the Crown was treated as a threat to state stability. It criminalised speech that brought the Crown into “hatred or contempt.” When exported wholesale to British colonies, including Northern Rhodesia, it became a tool of political control—used to silence independence movements and suppress dissent.
Zambia inherited this framework in 1938 when the Penal Code, enacted in 1931, was amended. It was never designed to protect democracy, but to prevent it.
Sections 57 to 62 of the Penal Code create a sweeping and expansive framework for criminalising dissent. Section 57 makes it an offence not only to carry out acts with a “seditious intention,” but also to utter so-called seditious words, publish or distribute material deemed seditious, or even possess such material without lawful excuse—offences punishable by up to seven years’ imprisonment for a first offence.
At the centre of this framework is section 60, which defines “seditious intention” in remarkably broad and subjective terms. It covers intentions to undermine confidence in government by bringing it into hatred or contempt, to generate public disaffection or dissatisfaction, to challenge the administration of justice, or to encourage unlawful political change. It extends further to include promoting hostility between different communities or classes, advocating secession, or encouraging resistance to the law or its enforcement—even where no violence is intended or likely.
Although the law includes procedural safeguards—such as requiring the consent of the Director of Public Prosecutions and prohibiting conviction based on a single uncorroborated witness—these do little to limit the extraordinary breadth of the offence itself.
But what does it mean to “excite disaffection,” or to bring government into “contempt”? When does political speech cross the line?
The law provides no answers.
This vagueness is not incidental. It is fundamental. It grants the state sweeping discretion to determine what speech is criminal. It allows legitimate criticism to be reframed as sedition. And it places citizens at the mercy of interpretation rather than the protection of clear law.
And where a law grants that level of discretion, its misuse is not an accident. It is inevitable.
A pattern of abuse across generations
From the colonial era to the present day, these provisions have been repeatedly deployed to suppress dissent, target critics, and manage political opposition.
In The Queen v Chona (1962), nationalist leader Mainza Chona was prosecuted for statements critical of colonial rule. Sedition was used exactly as intended—to silence those challenging authority.
Post-independence, the pattern persisted.
In July 2013, three journalists linked to the online publication Zambian Watchdog—Clayson Hamasaka (now State House Communications Specialist), Thomas Allan Zgambo, and Wilson Pondamali—were arrested and charged under sections 57 and 60. Their alleged offence was publishing content critical of government. The arrests signalled a clear warning: dissent could be criminalised.
In November 2013, McDonald Chipenzi (then Foundation for Democratic Process Executive Director and now a commissioner at the Electoral Commission of Zambia), Richard Sakala (owner of the Daily Nation), and Simon Mwanza (Daily Nation editor) were arrested and charged under section 67 for allegedly publishing false information likely to cause public alarm.
In 2016, then-opposition leader Hakainde Hichilema and his deputy Geoffrey Mwamba were arrested and charged with seditious practices. At the time, UPND spokesperson Charles Kakoma stated: “This is a scheme by the party in power to harass the opposition and instil fear in them.”
More recently, sedition provisions have been used against opposition figures such as Fred M’membe, Daniel Pule, and Raphael Nakacinda. Civil society activist Brebner Changala has been charged under section 57(1)(b) read with section 60(1)(b), while journalist Thomas Allan Zgambo has faced charges under section 57(1)(c).
These cases are not isolated incidents. They reflect a systemic pattern: sedition laws are deployed when criticism becomes politically inconvenient.
The constitutional promise—and its betrayal
Article 20 of the Constitution guarantees freedom of expression. Zambia is also bound by international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights. Both instruments affirm that restrictions on speech must be lawful, necessary, and proportionate.
Sedition laws fail this test. They are vague, overly broad, and disproportionate. They criminalise expression based on subjective interpretations of emotional impact rather than demonstrable harm. They create a chilling effect where citizens, journalists, and activists self-censor out of fear.
When citizens are afraid to speak, democracy begins to erode.
The Chipenzi judgment: A constitutional fault line
The 2014 High Court decision in Chipenzi and Others v The People marked a turning point. The Court declared section 67 unconstitutional because it violated freedom of expression.
The defence had argued that the provision was outdated and repressive. As then defence lawyer Marshall Muchende (now Solicitor-General) later explained:
“We argued that the provision was simply an outdated and repressive piece of legislation that serves no legitimate aim in a free, open and democratic society. It had been introduced in colonial times to repress the independence movement; and in recent years the ‘false news’ law had been a key tool used by the ruling Patriotic Front government to suffocate the views of media houses and others who were seen to be opposed to it.”
The reasoning in Chipenzi applies directly—and perhaps even more forcefully—to sedition. Both offences rely on vague language and criminalise speech based on perceived emotional or political impact. Both grant excessive discretion to authorities.
If section 67 could not withstand constitutional scrutiny, then sections 57 to 62 are equally vulnerable.
The irony of power
Few figures embody this contradiction more than President Hakainde Hichilema.
On 13 August 2012, he was arrested and charged under section 67 for allegedly publishing false news. He rejected the charges as “politically motivated.” According to contemporaneous reporting, he argued that as a politician he had “a constitutional right to comment and fire salvos or issue warnings even in the most venomous, satirical or disparaging manner on issues of public interest and generally on the conduct of public authorities.”
His legal team further contended that the law was “outdated, unconstitutional and anchored on an outdated law” and “in its current state… discriminatory, disproportionate, unreasonable and liable to abuse as it contravened Articles 18, 20 and 23 of the Constitution.”
Those arguments were compelling. They were vindicated in Chipenzi.
Yet today, the same legal framework continues to be used against others.
What changed?
Comparative case law: Sedition rejected elsewhere
Zambia is not alone in confronting the legacy of sedition laws. Across the Commonwealth and beyond, courts and legislatures have increasingly recognised that such offences are incompatible with constitutional democracy.
In Nigeria, the Court of Appeal in Arthur Nwankwo v State (1985) struck down sedition provisions as unconstitutional, holding that “[t]hose in public office must not be intolerant of criticism… the sedition law is inconsistent with the constitutional guarantee of freedom of expression.” The Court made clear that criminalising criticism of government is fundamentally at odds with democratic governance.
In Uganda, the Constitutional Court in Mwenda and Another v Attorney General (2010) declared the offence of sedition unconstitutional in its entirety. The Court emphasised that the law was impermissibly vague and rooted in a colonial fear of dissent, observing that “the wording creating the offence of sedition is so vague that one may not know the boundary to stop at while exercising one’s right …” The Court recognised that a law which criminalises emotional reactions such as “disaffection” inevitably captures legitimate political expression and therefore cannot be reconciled with constitutional guarantees.
More recently, in Pakistan, the Lahore High Court in Haroon Farooq v Federation of Pakistan and Others (2023) struck down the offence of sedition as unconstitutional. In a powerful affirmation of democratic principle, the Court held: “It is inconceivable for a fiduciary to gag and muzzle the delegator by making use of a provision which is archaic and… antithetical to the instincts and traditions of a people under a constitutional democracy.” The Court went further, recognising that sedition laws invert the democratic relationship between citizens and the state by allowing those in power to silence those from whom that power is derived.
Regional courts have reached similar conclusions. In Federation of African Journalists v Gambia (2018), the ECOWAS Court held that broadly worded sedition laws create a “chilling effect,” forcing individuals to self-censor to avoid prosecution. Likewise, the East African Court of Justice in Media Council of Tanzania v Tanzania (2019) found that sedition-related provisions failed the test of clarity and predictability required under international human rights law.
These decisions are not merely persuasive—they articulate the same constitutional principles that underpin Zambia’s own jurisprudence. In Chipenzi, the High Court struck down section 67 of the Penal Code for vagueness and overbreadth, holding that speech-restrictive laws must be narrowly tailored and justifiable in a democratic society.
The logic is inescapable. If a law criminalising “false news” could not survive constitutional scrutiny because of its vagueness and chilling effect, then a law that criminalises “disaffection,” “hatred,” or “contempt” against government—without clear definition or limiting principle—is even more constitutionally suspect.
The trajectory is unmistakable: vague, overbroad speech offences cannot coexist with constitutional democracy.
Sedition is not an exception to that rule. It is its clearest violation.
The Changala case: A test of judicial prudence
The ongoing prosecution of civil rights activist Brebner Changala raises an additional concern. Despite a constitutional challenge to the sedition provisions pending before the High Court, the subordinate court has reportedly decided to proceed with the trial. This is troubling.
Article 28(2) of the Constitution provides that:
“If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of this Part, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court.”
Even if Changala’s lawyers may not have formally invoked this provision, the broader principle remains clear: courts should avoid proceeding where the validity of the underlying law is under constitutional challenge.
Comparative jurisprudence supports this. Courts in multiple jurisdictions have emphasised the duty to stay proceedings where a higher court’s determination may render them moot. Proceeding regardless risks injustice and undermines judicial coherence.
If the High Court ultimately finds sedition unconstitutional, any ongoing trial based on those provisions would be rendered otiose.
Democracy at risk—and a government that must choose
The continued use of sedition and related offences has sparked growing controversy. With opposition politicians, journalists, and civil society actors facing charges, the perception is increasingly difficult to ignore: these laws are being used not to protect public order, but to silence dissent.
Democracy depends on accountability. Accountability depends on free expression. When citizens fear prosecution for criticising government policy or conduct, public debate shrinks, scrutiny fades, and the very mechanisms that keep power in check begin to erode. What remains is not stability, but a quieter, more fragile form of governance—one in which silence replaces engagement and fear replaces participation.
As the country approaches another election cycle, the stakes are even higher. A government that came to power promising to restore fundamental rights and freedoms now finds itself presiding over the continued use of the very laws it once condemned. Its 2021 manifesto committed to reforming repressive legislation, including the Public Order Act. Yet, as Parliament prepares to dissolve, 39 bills have been introduced—and none address the sedition provisions or the Public Order Act.
This raises a difficult but unavoidable question: have these laws become too useful to relinquish?
If so, the implications are profound. A legal framework once criticised as a tool of repression risks becoming a tool of convenience. And in doing so, it risks eroding the moral and constitutional foundation on which the current administration was elected.
The government must repeal sections 57 to 62 of the Penal Code and align the Code with the Constitution and the country’s international obligations under the ICCPR and the African Charter. It must recognise that dissent is not disorder, and that criticism of government is not a threat to the state, but a reflection of a functioning democracy.
As an immediate step, the government should discontinue the ongoing prosecutions against opposition politicians, journalists, and civil society actors currently facing sedition charges. This is not an act of political concession. It is an affirmation of constitutional principle. Because a government confident in its legitimacy does not fear criticism. It answers it.
Conclusion: Reclaiming democracy
Sedition laws belong to another era—an era of empire, not democracy. They were designed to shield authority from scrutiny, not to serve a people who are, in constitutional terms, sovereign.
Their continued existence is fundamentally at odds with the Constitution. A law that criminalises “disaffection” against government sits uneasily—if not irreconcilably—with a constitutional order that guarantees citizens the right to question, criticise, and hold that very government to account.
The High Court has already pointed the way in Chipenzi. Comparative jurisprudence has reinforced the same conclusion: vague, overbroad speech offences cannot survive constitutional scrutiny in a democratic society. Sedition is not an exception to that rule—it is its clearest violation.
The real question, then, is not whether these provisions can be defended. It is whether they can continue to be justified in a constitutional democracy that claims to place power in the hands of its people.
That is ultimately a question not just of law, but of political will.
Because when a government fears dissent, it is not the people who have failed the state. It is the state that has failed its people.
