Sedition Laws: An outdated and unjustified restriction on freedom of expression – It’s time to reclaim democratic integrity
Cephas Lumina
IN democratic societies, freedom of expression is crucial as it enables citizens to engage in political discussions, hold the government accountable, and ensure transparency in decision-making. By allowing diverse perspectives and information to flow freely, it enables the public to scrutinize government actions and policies critically, reducing the risk of corruption and abuse of power. This transparency and accountability are vital for the health and sustainability of a democratic society.
In addition to its democratic benefits, freedom of expression plays a crucial role in promoting economic development. It fosters innovation, entrepreneurial activity, and efficient resource allocation. By enabling open discussions on economic policies, freedom of expression leads to better decision-making, helps in developing more effective strategies that benefit society, and ultimately contributes to economic growth. Transparent public debates drive policy innovation, enabling governments to adapt to the changing needs of the economy, while citizens’ ability to freely share ideas about economic reforms ensures policies are thoroughly examined and adjusted in line with democratic principles.
Furthermore, freedom of expression provides the foundation for civil society organizations to engage in advocacy and public dialogue on economic and other policies. These organizations contribute significantly to policy debates by expressing dissent and proposing alternatives, ensuring that the pursuit of economic development remains equitable and sustainable.
As part of this broader freedom, a free press plays a vital role in uncovering wrongdoing, such as corruption and mismanagement, and providing essential information for informed voting choices, empowering citizens to hold their elected leaders accountable more effectively.
Therefore, safeguarding and nurturing freedom of expression is crucial for upholding democratic values and promoting economic growth. Conversely, restrictions on freedom of expression can lead to economic stagnation and the consolidation of monopolistic power structures. In settings where dissent is stifled or censored, the lack of critical scrutiny often leads to inefficiencies and corruption that impede economic progress. The curtailment of free speech has historically been associated with reduced innovation and a decline in public trust in economic and political institutions.
The right to freedom of expression is protected by various international legal instruments, such as article 19 of the International Covenant on Civil and Political Rights, articles 12 and 13 of the Convention on the Rights of the Child, article 21 of the Convention on the Rights of Persons with Disabilities, and article 9 of the African Charter on Human and Peoples’ Rights, all emphasizing its crucial role in promoting a free society. Zambia is a party to all these instruments and thus has a legal obligation to protect, promote and fulfil the rights enshrined in them, including by ensuring that its national laws are consistent with them.
The right is also guaranteed in nearly every national constitution, including the Constitution of Zambia. Article 20(1) of the Constitution affirms that individuals should not be hindered in exercising their freedom of expression, including the right to hold opinions, receive and share ideas and information without interference. Article 20(2) specifies that no law should impede freedom of the press, except when necessary for defence, public safety, public order, public morality, or public health. Any limitations on this right must be justifiable in a democratic society.
The constitutional right to freedom of expression serves as a safeguard against government overreach, but various laws in the Zambian legal system, many of which originated during the colonial period, significantly weaken this protection. These provisions include sections in the Penal Code Act that prohibit publications deemed contrary to the public interest (section 53[1]), seditious speech or publications (section 60), dissemination of false news with the intent to cause fear and alarm (section 67), defamation of foreign dignitaries (section 71), and general defamation (sections 191 to 198). Additionally, section 25 of the National Assembly (Powers and Privileges) Act criminalizes publishing false or scandalous libel about the National Assembly or its members. It should be noted that, in the case of Chipenzi and 2 Others v The People (2014), the High Court declared section 67 unconstitutional, a decision that was not appealed by the state, rendering section 67 invalid. It is commendable that the current government repealed the offence of defamation of the president in 2022.
While successive governments have often used these laws, particularly those concerning criminal defamation, over the years, the ongoing use of sedition and criminal defamation provisions to suppress political dissent and restrict free expression has sparked increasing controversy, with many arguing that these outdated provisions are inconsistent with modern democratic principles and constitutional guarantees. The current situation, where several opposition politicians, lawmakers, a journalist, and a civil rights activist are facing sedition charges, reinforces the perception that these laws are being misused to silence political opposition and legitimate criticism of the government.
When citizens are prevented from speaking out against governmental policies due to the fear of arbitrary prosecution, it undermines the core principles of democratic accountability. Free expression not only fosters political discourse but also acts as a crucial check on the concentration of power, ensuring that elected officials remain responsive to the needs of the people. Therefore, urgent repeal of these laws is essential to restore full constitutional rights and enhance state accountability.
The sedition provisions in the Penal Code, reminiscent of colonial-era legislation, severely restrict speech critical of those in power, undermining the democratic ideal of robust public debate. The vague and overly broad language used in these provisions grants the state excessive discretion in determining what constitutes seditious speech. Section 57 of the Penal Code defines ‘seditious practices’ as engaging in activities with seditious intent, such as uttering seditious words, producing, selling, distributing, or reproducing seditious publications, or importing seditious publications. First-time offenders face a penalty of seven years’ imprisonment, a fine, or both.
Section 60(1) defines ‘seditious intention’ as ‘an intention’ to, among other things, ‘bring into hatred or contempt or to excite disaffection against the government as by law established,’ or ‘to excite the people of Zambia to procure the alteration, otherwise than by lawful means, of any other matter in Zambia as by law established,’ or ‘to bring into hatred or contempt or to excite disaffection against the administration of justice in Zambia,’ or ‘to raise discontent or disaffection among the people of Zambia.’ The Code does not provide definitions for key terms like ‘hatred,’ ‘contempt,’ ‘discontent,’ or ‘disaffection,’ which typically relate to negative feelings towards the government. This lack of clarity makes it difficult for the prosecution and the courts to determine the exact meaning of sedition.
The broad language of the sedition provisions also allows for arbitrary interpretation by law enforcement and judicial bodies, creating an environment where legitimate expressions are at risk of being labelled as seditious, further fueling perceptions of government overreach. Misusing sedition laws to suppress lawful criticism not only restricts political engagement but also creates a chilling effect on free expression, essential for a healthy democracy. When sedition laws are arbitrarily used against political activists, journalists and citizens, they undermine the rule of law and the right to freedom of expression.
It is important to understand that the protection of constitutional rights is closely linked to economic development and social progress in Zambia, and sedition laws pose a risk to these broader developmental objectives. When citizens fear reprisals for expressing dissent, innovation and civic engagement suffer, ultimately hindering economic growth and social cohesion. By eliminating laws that stifle open debate, Zambia can create an environment conducive to sustained democratic and economic development.
In many ways, the Penal Code reflects outdated legal paradigms that originated in contexts far removed from modern democratic governance. Enacted in 1930, the Code’s sedition laws were initially designed to maintain the stability of colonial administrations, not to regulate the diverse political landscapes of contemporary societies. While originally intended to preserve the colonial status quo, sedition laws have become tools of political repression, silencing opposition and activist communities. These laws are disproportionately applied, leading to significant restrictions on political discourse and fostering an authoritarian political environment. The negative impact extends beyond individual rights, as a society deprived of free, open debate struggles to evolve democratically.
The persistence of these archaic sedition and other ‘insult’ laws in Zambia represents a significant anomaly within a legal framework that aims to protect human rights and democratic freedoms. Eliminating sedition offences would therefore mark a clear departure from colonial legacies and pave the way for a more progressive legal system. This transformative legal reform is crucial for developing a constitution that truly reflects the will and aspirations of a free society.
Evidence from other countries suggest that relaxing or repealing sedition and criminal defamation laws would not compromise national security but rather support democratic discourse. Precedents from other African democracies indicate that robust constitutionally anchored free speech rights are essential for monitoring government actions and ensuring social justice. In this context, the sedition and defamation provisions in the Penal Code appear more as obstacles to progress than protective measures.
Realizing Zambia’s democratic potential hinges on removing sedition and other ‘insult’ laws that hinder free debate and suppress civic engagement. Transitioning away from these repressive provisions would signify a break from outdated legal frameworks that no longer serve a modern, pluralistic society’s interests. A reformed legal landscape, based on clarity, proportionality, and respect for constitutional rights, as well as Zambia’s international human rights obligations, holds the promise of revitalizing public discourse and democratic participation. Prioritizing freedom of expression as a fundamental right is crucial for a vibrant and sustainable democracy. As Zambia stands at the cross-roads of legal reform and democratic renewal, repealing sedition offences emerges as a necessary step toward fostering a resilient, inclusive, and forward-looking political system and society.
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Cephas Lumina is a Professor of Constitutional and International Human Rights Law, an Advocate of the High Court of Zambia and a member of the United Nations Committee on the Rights of the Child. He teaches, among other university courses, Constitution-Making in Africa, Constitutional Law and Constitutional and Human Rights Litigation.
