By Prof Muna Ndulo
Published on Tuesday 08 June 2010 in the Post Newspaper
The conviction of M’membe on a charge of contempt of court by magistrate David Simusamba is wrong in law and is not supported by judicial precedent from other common law jurisdictions. Even assuming that the Comedy of Errors article was an attempt to influence the court, there are several Commonwealth decisions that say that you cannot have contempt on those kinds of facts in a situation where the trial is by a professional judge alone and there is no jury system.
The professional judge, magistrate knows the law. He or she cannot be influenced by anybody. If he or she can be influenced by comments from the public, he or she does not deserve the honour of being a judge. In the Nigerian case of Akinrisola v. Attorney-General of Anambra State (1980 2 NCR 17) whose facts are similar to the M’membe case, a newspaper article was involved and it commented directly on the law while the court was hearing an election petition, the Nigerian Supreme Court ruled that it was not contempt on the grounds that the trial court was presided over by a professional judge and as a professional was not capable of being influenced. The court observed that there was no jury that could be influenced. To suggest that there should be no comments on trials is ridiculous and is in fact a threat to the constitutionally guaranteed right of free speech. This would criminalise much of what goes on in the academy in the rest of the world. Those who argue that Zambian contempt law are simply displaying legal ineptitude. Zambian contempt statutes track the colonial penal code model. They are the same provisions as you find in much of Commonwealth Africa.
Only a free and vibrant press can provide citizens with a range of information and opinions including fiercely critical views on the actions of the government and other institutions in a country. As Justice Black of the United States Supreme Court outlining the underlying justification for the protection of free speech in the American constitution observed in New York v. Times Company, “the press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”(403 US 713 (1971)).
It is recognised worldwide that governments that have autocratic tendencies use the criminal justice system to intimidate and harass journalists and media houses. The governments often consider it politically wise to get a court to share the responsibility of harassing and arresting people who those in power believe are embarrassing the government. This is done through threats of prosecution on the pain of imprisonment or threat of financial ruin through legal fees that those targeted are forced to incur defending themselves in courts of law. Of course the most effective way of doing this is the criminalisation of criticism of the judicial system through the use of contempt proceedings. Reporters and others that criticise courts or comment on judicial proceedings are either charged with scandalising the courts or interfering with the work of the courts. With respect to scandalising the courts as the leading English Judge Lord Atkin observed a long time ago: “But whether the authority and position of an individual judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way.. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”
Courts, in dealing with these matters, must always remember that there are broader values that deserve protection, as the South African Constitutional Court Judge, Justice Krigler observed in The State v. Russell Malambo (Constitutional Court of South Africa) (CCT 44/00): “ free and frank debate about judicial proceedings serves more that one vital purpose. Self-evidently such informed and vocal public scrutiny provides impartiality, accessibility and effectiveness.” It constitutes a democratic check on the judiciary. And as another South African Constitutional Court Judge, Abbie Sachs observed in the same case: “indeed, bruising criticism could in many circumstances lead to improvement in the administration of justice. Conversely, the chilling effect of fear of prosecution for criticising the courts might be conducive to its deterioration.”
With respect to sentencing, magistrate Simusamba introduced new jurisprudence in the common law as we know it which would make the Judge in the English case Solmon v. Solmon that established the concept of limited liability turn in his grave. How on earth do you sentence an individual for the alleged sins of a corporation? It is trite law that a corporation is a separate entity from the individuals that work for it and indeed from the shareholders that own it.
M’membe is not The Post. In law, the two are distinct. A fine is the appropriate sentence for a corporation. On the length of the sentence, it is simply vindictive and outrageous. How do you sentence a first offender to 4 months without an option of a fine when only two months ago the Supreme Court sentenced Kavindele to a fine on a contempt charge?
Meanwhile, Amos Chanda said PAZA was saddened by M’membe’s conviction.
“…and therefore takes this moment to offer him and his newspaper its deepest solidarity and fraternity deserving of the cause he has championed over the years,” Chanda said. “PAZA considers Mr M’membe a prisoner of conscience who deserves the support of all those who cherish the cause of freedom of expression and of the media that he, together with like-minded colleagues, champion on behalf of the silent majority.”
Chanda said at this moment of tribulation, PAZA offered M’membe its deepest solidarity and the fraternity freely shared by advocates of freedom of expression and the media.
“We also encourage journalists at The Post and beyond to work even harder in their struggle to overcome the various pressures that have been mounting against media professionals in recent times,” Chanda urged. “As law-abiding citizens, we respect the independence of the judiciary but at the same time we reserve our right to disagree with some of its decisions like this one, which is why we support the grounds of appeal defence lawyers will lodge before the High Court next week.”
Chanda described M’membe’s conviction as a setback that must not dissuade The Post from pursuing the sound values it espouses given that it operates in a political environment that is so hostile to media freedom.
“The practice of journalism has become a constant daily struggle against a myriad of legal and political landmines,” Chanda bemoaned. “When the case is fully discharged by the courts of law, PAZA will give a comprehensive position on contempt laws that affect media freedom and other restrictive laws generally called ‘insult laws’ in the media advocacy parlance.”