By Isaac Mwanza
The release of Pilato’s remix is once again sparking debate on what Defamation of the President is and whether the President can be criticised. Before I proceed any further, let me advise PF leaders and the Zambia Police Force that depending on how they react to the “A Lungu” song done by this Copperbelt based musician, Pilato, they can make a hero of someone who doesn’t deserve that status, once again. President Lungu must resist the temptation to comment or act against Pilato and worse still, sending the Zambia Police Force to arrest Pilato because he will give chance to fellow politicians to take advantage and make this their politcal campaigns. Let the sleeping dog lie.
The issue of defamation of the President as contain3d in Section 69 of the Penal Code has been the hot topic for over two decades now especially when Zambia reverted to the Multi Party Politics although the law itself has existed since 1930, six years after the British Government too direct administration of Northern Rhodesia. It was drafted in the Legal Department of the Colonial Office under the direction of Secretary of State for Colonies. The Penal Code itself was lifted from Nigeria where the Code of the English Criminal Law had been in operation by 1930 for fourteen years.
Under Section 69 of the Penal Code, it just needs to be shown that the person has published defamatory or insulting matter to the Presidency, whether in writing, by word of mouth or any other to be put on his defence. The law itself does not lay guidelines to determining what is “insulting matter”. The police have the discretion to decide what publicatio is defamatory or insulting and what is not. The current scenario of Pilato will be very tempting to both PF leaders and the Police to act on this matter. In the next few days, we may see a number of constitutional lawyers hired by unknown forces to defend Pilato because all this will turn political.
If there is anything I have respect to the Fred M’membe and his colleagues was there contribution to development and inteprearion of law and seeking Justice when, for almost 3 times or more, Fred and his friend have challenged the Constitutionality of Section 69 in both the High Court and Supreme Court in the case of ‘The People vs Bright Mwape and Anor,’ ‘Fred M’membe and Anor v The People’ and ‘M’membe and Others v The People’ but at all times, our Judiciary, as we know it, has had men and women who sort to “think for today and tommorow is not ours to worry about”.
At one point during the Mwanawasa era, Fred M’membe and ‘The Post reserved some strong words for Mwanawasa, calling some of his actions stupid. The police quickly pounced on M’membe and remanded him at Kabwata Police. He, however, stood his ground and called for the High Court to strike down the law that criminalized presidential defamation. M’membe claimed that a stupid president should not hide his stupidity behind the cloth of presidential defamation. This case never went to court; it was withdrawn by Mwanawasa. The might of presidential powers were no match to cage M’membe. He was acquiring for himself real power and clout’ as one commentator had observed in 2010.
It will be interesting to see what will happen if PF leaders and officers from the Police Force are overpowered by emotion and take on Pilato in the defamation case but my advise to President Lungu is that it’s better not to legitimise some political thought and turn people into heroes when they are not supposed to be so. If I was an advisor to President Lungu, I would say, “Boss, forget about this provocation and restrain these overzealous police from giving Pilato a name he doesn’t deserve, let’s go and and tour George Compound now and meet the people”