- C.
M. MUSUMALI, J.:
-
- This
is a petition filed by the seven petitioners individually and
severally against the respondent. The respondent has
been made a
party to these proceedings by virtue of s.12 of the State
Proceedings Act Cap. 92.
-
- The
issue that has given rise to this petition is part of what was
said by His Excellency the President of the Republic
of Zambia at
a news conference at State House Lusaka on 1st November, 1990. In
order to state the petitioners' case as
accurately as possible it
is instructive to quote from the petition filed by them in this
matter: para. 4, 8 and 9. I should
probably at this stage say
that the numbering of the paragraphs of the petition was wrong
after the first paragraph 4.
The next paragraph should have been
5 but instead it reads 4 again. This was I think a typographical
error and I have made
the necessary corrections in pencil. There
is no need for concern by the petitioners. Paragraph 4 states:
-
-
''At the
press conference held at State House on 1st
November, 1990 His Excellency The President made a directive to
the effect that henceforth the Government owned newspaper
the
Zambia
Daily Mail and
what he referred to as (UNIP) Party newspapers the Times
of Zambia
and the Sunday
Times
shall cease to give coverage to statements made by members of
the Movement for Multi-Party Democracy and in the case of
the
Times
of Zambia
and the Sunday
Times
they shall stop to accept advertisements from the Movement. The
President announced that these newspapers were owned by
the
United
-
- p97
-
-
National
Independence Party and its Government and as such they should
give no room for the opposition to criticise their
policies,
actions or programmes.''
-
- Paragraph
8 says:
-
- ''Your
petitioner will assert that by the said directive of the
President the United National Independence Party and its
members
were given the privilege of disseminating information and
propaganda of their programmes and actions through the
news media
while denying non-members of the said party effective means to
counter propaganda or to present their own case.''
-
- Then
paragraph 9 states:
- ''By
reason of the foregoing premises your petitioners assert that in
relation to them both as citizens of Zambia and as
members of the
Movement for Multi-Party Democracy individually and severally the
directive made by the President as aforesaid
being discriminatory
has violated their rights under art. 25(2) and (3) of the
Constitution of Zambia in that it was given
by the President in
the performance of the functions of a public office and it had
the effect of affording to your petitioners
and other
non-members of the United National Independence Party different
treatment attributable wholly or mainly to their
political
opinion and they have thereby been subjected to disabilities or
restrictions to which members of the United National
Independence
Party are not subject. WHEREBY your petitioners pray:
- (a) That
the
Times of Zambia,
the
Sunday Times
and the Zambia
Daily Mail
are owned by and on behalf of the people of Zambia through the
companies by which they are managed and that neither
the
President nor any other person or organisation has the right to
use them for the political or other interest of
the President
or such person or organisation to the exclusion of the benefit
of other citizens except as provided by
the law.
- (b) That
it may be declared that the directive by the President that the
Times of Zambia,
the Sunday
Times and
the Zambia
Daily Mail
shall cease to give coverage of statements made by members of
the Movement for Multi-Party Democracy and in the case
of the
Times
of Zambia and
the Sunday
Times,
that they should cease to accept advertisements from the
members of the said Movement was unconstitutional and violated
the rights of the petitioners as recognised under art. 25(2)
and (3) of the Constitution of Zambia.
-
(c) That
the said directive may be quashed and set aside.
-
(d) That
it may be declared that the press in Zambia are entitled to and
should continue to enjoy the freedom of the
press that is to
say the freedom to hold opinions without interference, the
freedom to receive ideas and information
without interference
and the freedom to communicate ideas and information to the
public without interference.
-
(e) That
such other orders or directions as the Court considers
appropriate may be made for the purpose of enforcing
or
securing the enforcement of the provisions of art. 22 and 25 of
the Constitution of Zambia.
-
(f) That
the respondent may be condemned to pay the costs of and
incidental to these proceedings.''
-
- The
evidence
-
In
support of this petition, six people testified. The first witness
was Mr Vernon Johnson Mwaanga. He told the Court that
the
response of the local media prior to 1st
November, 1990 was lukewarm and sometimes even hostile. For
instance, the Convention of 20th July, 1990, which was held
at
Garden Hotel to set up the Movement for Multi-Party Democracy,
- p98
-
- which
I shall from now onwards in this judgment be referring to as MMD,
was reported on TV without sound of the pictures
of Messrs Arthur
Wina, Frederick Chiluba and himself.
-
- The
reporting of what had happened at that Convention, he went on,
was instead concentrated on the negative aspects. The
MMD thus
complained to the Director-General of the Zambia National
Broadcasting Corporation Limited (ZNBC) on 6th September,
he
said, against that sort of news coverage. Exhibit P1 was the
letter of complaint he said.
-
- The
witness then moved on to the news conference that was held by His
Excellency the President at State House on 1st November,
1990. At
that gathering the President said the following so far as they
are relevant to these proceedings;
-
THAT:
-
1. The
Times of Zambia and the Zambia Daily Mail should not be reporting
the activities of the MMD.
- 2. The
Times of Zambia was a (UNIP) Party paper.
-
3. The
Zambia Daily Mail was a Government paper.
-
4. The
two newspapers were expected to toe the Government line.
-
5. He
would issue directives to that effect to the press.
- 6. He
was speaking both as President of UNIP and of the Republic.
-
7. Government
Departments and Parastatals should not advertise in the National
Mirror
because
the National Mirror had told lies about the activities of UNIP's
leadership.
-
- The
witness then told the Court that on 2nd
November 1990 he issued a press release - exh P3 - to rebut
the unfavourable aspects which had arisen from that news
conference. That press release, he went on, was not carried in
the local news media, namely the radio, TV and newspaper,
the
following day. The
Zambia Daily Mail
carried a very small and very begrudging article of it, he said.
- On
5th
November, 1990, he continued, the MMD issued another press
release - exh P5. In it, it was pointed out that the Government
had contravened art. 25(2) and (3) of the (Republican)
Constitution in the directives to the press by His Excellency the
President. The Government was asked to withdraw those directives
or it was to face Court proceedings. The local newspapers
of the
6th
November 1990 did not carry that press release, said the
witness.
-
- On
29th
November, 1990, another press release - exh. P7 - was issued
by the MMD. That release was not carried in any local
daily
newspaper or other media the following day.
- The
witness then told the Court that he served on the Board of
Directors of the Times
of Zambia, Sunday Times
and Printpak Zambia Limited from 1980 to 1985. The money which
was a loan, used to purchase the shares of these two newspapers,
Times
of Zambia
and Sunday
Times,
he went on, by the Zambia National Holdings Limited was in part
from the Zambia National I Provident Fund and in part
from the
Zambia State Insurance Corporation Limited. The Zambia National
Holdings Limited is/was wholly owned by UNIP,
he said. These
companies were bought from Lonrho. In 1989, he went on, the
National Media Corporation (NAMECO) took over
the Tim
-
es
and the SundayTimes
of Zambia Limited.
-
- p99
-
- In
cross-examination Mr Mwaanga said that the directives in question
were presidental ones and such directives are law in
this
country. He then said that the papers in question ie the
Times and
the
Zambia Daily Mail
are not obliged to cover MMD activities; but every
Editor-in-Chief is supposed to exercise his discretion. Answering
a question whether or not the Editors-in-Chief of these
newspapers are not supposed to receive instructions from the Head
of State, the witness said that during his time he never received
any instructions. He then said that he was not aware
of any such
arrangements prior to 1st
November, 1990.
-
- The
next witness (PW2) was Mr Levy Patrick Mwanawasa. He repeated
what PW1 (Mr Mwaanga) had already told the Court as to
what His
Excellency the President instructed the newspapers not to be
doing in respect of MMD activities. He then said
that the rights
of the MMD under art. 26 of the Constitution were being
interfered with in that the President was discriminating
between
the MMD and UNIP members.
-
Mr
Mwanawasa then said that in order to determine the ownership of
the newspapers, he decided to conduct a search at the
Companies'
Registry. His findings were:
-
- (1)
The file of the Times
of Zambia Limited
was missing.
- (2)
The Zambia
Daily Mail Limited:
the file was found, it is exh. P9 in these proceedings. That file
revealed the following information:
-
- (a) The
company was incorporated on 27th December, 1978.
-
(b) With
a share capital of K700 000,00 divided into 7 000 shares of
K100,00 each.
- (c) There
were two shareholders namely the Zambia Publishing Company
Limited and Mr Sikota Wina.
-
(d)
These shareholders had one share each.
-
(e) A
Return of Allotment (Form 23) filed on 23rd
December, 1983 showed that 3 000 shares had been issued. Of
these Zambia Publishing Company held 2,999 shares and
Sikota
Wina held 1 share.
- (f) On
19th
December, 1984 another Return of Allotment (Form 23) was
filed. This document showed that the nominal share capital
had
been increased to K1 200 000.00. 850 000 shares had been
issued. The 1.2 million shares were of K1.00. Of the 850
000
shares Zambia Publishing Company held 849 998 shares and Mr
Sikota Wina had 1 share. There were no minutes on that
file
indicating that any of those shares had been alloted to anybody
else.
-
(g) There
was another Return of Allotment of 4th
January, 1989 on the file.
-
That
document showed the same information as that shown by 19th
December, 1984 Return of Allotment (see (f) above).
-
- (3)
The Zambia Publishing Company Limited.
-
- The
file of this company was found and searched. It revealed the
following information.
- (a) The
company was formed on 16th
June, 1966.
-
(b) With
a share capital of K40 000,00.
-
(c) The
shareholders were Messrs U. G. Mwila (now deceased) and Nephas
Tembo. Each of them had 1 share.
-
- p10
-
- (d) There
was a Return of Allotment of 26th January, 1983. It showed three
shareholders: the already mentioned ones each
holding 1 share and
the Minister of Finance with 648 998 shares.
-
(e) Another
Return of Allotments of 4th January, 1989 was on the file. It
showed the three shareholders already mentioned.
Messrs Mwila
and Tembo still held 1 share each. The Ministry of Finance held
791 000 shares. There were no minutes showing
the increases in
the share capital at all.
-
(f) Also
on the record was an extract of a meeting that was held on 3rd
March, 1990. Those minutes showed that the Zambia
Publishing
Company Limited was in voluntary liquidation.
- (4)
The National Media Corporation Limited:
-
- The
file was found and inspected. It revealed the following:
-
- (a) The
company was incorporated on 16th
January, 1989.
-
(b) With
a share capital of K25 000 000.00.
- (c) Messrs
Joseph C.M. Punabantu and George M. Pelekamoyo held 1 share.
-
(d) The
Minister of Finance surrendered the shares he had held in the
Zambia Publishing Company.
-
(e) New
shares in this Company (NAMECO) were then issued to the Minister
of Finance.
- (f) Mr
Punabantu is shown as being a special assistant to the President.
-
- Mr
Pelekamoyo appears as Permanent Secretary.
- The
witness then said that the President of this country is not
empowered by the articles of Association of the Zambia
Daily Mail Limited
to issue the sort of directives that he issued namely what to
publish and what not to publish. Those directives, he said,
having been made in the official capacity of President of the
Republic of Zambia, were discriminatory of the MMD and this
was
contrary to the requirements of art. 25 of the Constitution. He
then said that the two daily newspapers in this country
are
Government and not UNIP bodies. That this is so has been
evidenced by the asking of the two editors of those papers
who
were sacked sometime late last year to report to Cabinet Office
and not to Freedom House for redeployment, he said.
-
- In
cross-examination the witness was asked if he had tried to find
out whether or not instructions were given to the newspapers.
In
reply he said that those instructions were given at a public
conference; that he had no cause to believe that they were
withdrawn. He then said that neither the Articles nor the
Memoranda of Association of those papers nor the Republican
Constitution empower the President to direct those papers'
activities or to control the press respectively. Next was Mr
Joseph Kunkuta (PW3). He said that he was the Registrar of
Companies. This witness repeated what was said by PW2 regarding
the shareholding and share capital of the National Media
Corporation and the Zambia
Daily Mail Limited,
amongst other repetition. He also repeated that the Times
of Zambia Limited file
was lost.
-
- Next
was Dr Stephen Moyo (PW4). In essence this witness produced two
videotapes of the news conference in question.
-
- p101
-
- One
was titled: K.K. Press Conference Tape 2 of 1.11.90. It is number
L.V.C. 0206089. This was the unedited tape recording.
It was
marked as exh. P13. The other was: K. K. Press Conference
reshuffle 1.11.90. This was the edited version of that
news
conference.
-
- Mr
Sikota Wina was PW5. He told the Court that he was a shareholder
in the
Zambia Daily Mail Limited.
That Company, he went on, was incorporation by the Government for
the purpose of disseminating information to the Zambian
people.
But over the years, he continued, the Government has turned it
into a mouthpiece through the Zambia
Daily Mail.
He then said that a newspaper worth its salt has to inform the
public of all newsworthy events.
- In
cross-examination the witness said that when the company was
formed he was a Government Minister. But he was a shareholder
in
his individual and not his official capacity, he said. He then
said that there are supposed to be annual general meetings
of
this company (the Zambia
Daily Mail
Limited) during which the shareholders can review the paper's
progress. No such meetings have been held which he has attended
over the years, he said.
-
- The
last witness (PW6) was Evans Haamaundu. He told the Court that he
is the Company Secretary of the National Media Corporation.
The
Ministry of Finance and National Commission for Development
Planning is the principal shareholder he said. He then
said that
the companies fall under his corporation. These are the Zambia
Printing Company Limited, Printpak Zambia Limited,
the Times
Newspapers Zambia Limited, The
Zambia Daily
Mail
Limited and the Newspapers Distributors Limited. The Times
of Zambia
Limited, Printpak Zambia Limited and Newspaper Distributors
Limited were acquired from the Zambia National Holdings Limited
by the National Media Corporation, he said. Share transfers were
executed in or about July 1989 from Zambia Publishing
Company
Limited to National Media Corporation. He went on and said that
share transfer certificate number ZNHL/006/90 (exh.
P15)
transferred 99 800 ordinary shares in the Times
Newspapers Zambia Limited from the National Holdings Limited to
National Media Corporation. Share transfer certificate
number
ZNHL/007/90 (exh. P16) transferred 200 ordinary shares in the
Times
Newspapers Zambia Limited from Petronella Chisanga to Mr George
Pelekamoyo. Share transfer certificate number ZNHL/004/90
(exh.
P17) transferred 499 800 ordinary shares in Printpak Zambia
Limited from Zambia National Holdings Limited to National
Media
Corporation. Share transfer certificate number ZNHL/002/90 (exh.
P20) transferred 1 ordinary share in Newspaper Distributors
Limited from Axon Soko (deceased) to Milimo Punabantu. Share
transfer certificate number ZNHL/003/90 (exh. P21) transferred
1
share in Newspaper Distributors Limited from Petronella Chisanga
to George Pelekamoyo. The witness then said that the
share
transfer certificates referred to above were executed on 1st
August 1990. He went on and said that the money which
was used to
pay for the shares in the National Media Corporation in respect
of all the companies came from the Ministry
of Finance. The
Zambia National Holdings Limited does not hold any shares in any
of the companies falling under the National
Media Corporation, he
said. The Ministry of Finance is the major shareholder in the
National Media
-
- p102
-
- Corporation,
he added. The Times
Newspapers Zambia Limited, Printpak Zambia Limited and Newspaper
Distributors Limited are owned by the National Media Corporation
Limited, which in turn is controlled by the Ministry of Finance
etc. being the majority shareholder, said the witness.
-
- In
defence of this petition the respondent called one witness, Mr
Emmanuel N Nyirenda. He told the Court that he is the
Deputy
Managing Editor of the Zambia
Daily Mail.
He went on and said that after the news conference of 1st
November 1990, his paper did not get instructions that the paper
should not be giving coverage to MMD activities. He then said
that the covering of the MMD had not stopped since that press
conference. To illustrate the truth of this statement the witness
showed the Court nine reports of what he called MMD activities
between 3 November and 25th December 1990. Those reports were the
following:
-
- (1) 3.11.1990
front page coverage entilted: Pluralists Complete Draft
Constitution. This was marked exh. P23.
-
(2) 15.11.1990
front page coverage of the proceedings in Choma subordinate court
involving some MMD leaders and cadres
- exh. P22.
-
(3)
21.11.90 front coverage titled: Pluralists Solicit Support
Abroad. Exhibit P24.
-
(4) 3.12.1990
page 5 coverage titled: MMD name to be retained. Exhibit P25.
- (5)
6.12.1990 two front page stories titled:
-
- (a)
MMD Denies UNITA Linking.
-
(b)
MMD attacks UNIP's Past Record.
-
Both these are in exh. P26
- (6)
14.12.1990 front page story:
-
MMD
Official Get Threats. Exhibit P27.
-
(7)
10.12.1990 front page coverage: Move Cheers Wina. Exhibit P28.
-
(8)
21.12.1990 front page story: MMD Born Again. Exhibit P29.
and
-
(9)
25.12.1990 again front page coverage. Story titled: MMD is our
Baby, says M.U.Z. Chief. Exhibit P30.
-
- The
witness then said that it was possible that some MMD statements
may have not been published by his paper. This was
because that
paper has its own criteria of deciding what to use and what not
to use. Some of those statements, he went
on, did not meet the
necessary criteria for publication, while others may have been
received late. He then said that the
presidential statement or
directive of 1st
November, 1990 did not influence the newspaper. If it had, he
contended, the many publications quoted above could not
have been
published. There was no discrimination in the coverage of the MMD
news unless this meant the non-giving of front
page coverage to
that news, he said.
-
- In
cross-examination the witness said that the directive which was
given by His Excellency the President had no relevance
at all so
far as he was concerned. He then said that the report carried in
exh. P23 was based on the press release marked
exh. P3, as well
in what the MMD discussed with members of the press soon after
that press release that day. He went on
and said that exh. P5 was
not in any issue of his newspaper. Talking about the instructions
of 1st
November the witness said that it was within the
-
- p103
-
- Head
of State's powers to give instructions to the newspapers. But
such intructions were normally channelled through the
Ministry of
Information. The Head of State had such powers, said the witness,
because first the Government owns the papers
and second he is the
Head of the Government. He then conceded that the articles
contained in exhs. P24 to P30 were published
after the
commencement of this action. Be that as it may, he contended,
those stories were not published because the paper
had been sued.
About the story carried in exh. P22, the witness agreed with Mr
Silwamba, the MMD advocate who was cross-examinating
him, that it
concerned court proceedings against some MMD dignitaries and
members.
- After
this witness, it was agreed that the parties' advocates would
send written submissions by 11th January, 1991. This
undertaking
was not honoured by either side. But I did recieve the
submissions before I wrote this judgment.
- The
submissions
-
(a) The
petitioners'
-
- Those
submissions were that the presidential directives of 1st
November, 1990 constituted a hindrance in the petitioners'
enjoyment of their fundamental human rights as guaranteed by
arts. 22 and 25 of the Constitution. To help the Court determine
this issue two questions were posed:
-
- (a) Does
the executive power of the President include or extend to the
exclusive utitlisation of public property for the
sole benefit of
the President or the political party that carries favour with him
to the exclusion and express disadvantage
of the political party
or parties opposed to the President's view?
-
(b) Is
the property bought and owned by the Government and so acquired
at
- the
complete discretion of the Government to be enjoyed by all the
Zambian people generally or can it legitimately be used
for
parties or personal interest?
- Then
arts. 22 and 25 were reproduced. Since reference will be made to
those articles, it is imperative to reproduce them
here. They
provide as follow:
- ''Article
22;
-
(1) Except
with his own consent no person shall be hindered in the enjoyment
of his freedom of expression, that is to say,
freedom to hold
opinions without interference, freedom to receive ideas and
information without interference, freedom to
communicate ideas
and information without interference (whether the communication
be to the public generally or to any
person or class of persons)
and freedom from interference with his correspondence.
-
(2) Nothing
contained in or done under the authority of any law shall be held
to be inconsistent with or in contravention
of this article to
the extent that it is shown that the law in question makes
provision:
- (a) that
is reasonably required in the interest of defence, public
safety, public order, public morality or public health;
or
-
(b) that
is reasonably required for the purpose of protecting the
reputations, rights and freedoms of other persons
or the
private rights of persons
-
- p104
-
- concerned
in legal proceedings, preventing the disclosure of information
received in confidence, maintaining the authority
and
independence of the Courts, regulating educational institutions
in the interests of persons receiving instruction
therein or
regulating the technical adminstration or the technical
operation of telephone, telegraphy, posts, wireless,
broadcasting or television; or
- (c) that
imposes restricitions on public officers and except, so far as
that provision or as the case may be, the thing
done under the
authority thereof is shown not be reasonably justifiable in a
democratic society.''
-
- Article
25:
- (1) Subject
to the provision of clauses (4), (5) and (7) no law shall make
any provision that is discriminatory either of
itself or in its
effect.
-
(2) Subject
to the provisions of clauses (5), (7) and (8) no person shall be
treated in a discriminatory manner by any person
acting by virtue
of any written law or in the performance of the functions of any
public office or any public authority.
- (3) In
this article, the expression ''discriminatory'' means affording
different treatment to different persons attributable
wholly or
mainly to their respective descriptions by race, tribe, place of
origin, political opinions, colour or creed
whereby persons of
one such description are subject to disabilites or retrictions to
which persons of another such description
are not made subject or
are accorded privileges or advantages which are not accorded to
persons of another such description.
-
(4) Clause
(1) shall not apply to any law so far as that law makes provision
-
- (a)
for the appropriation of the general revenues of the Republic;
- (b)
with respect to persons who are not citizens of Zambia;
-
(c)
with respect to adoption, marriage, divorce, burial,
devolution of property on death or other matters of personal
law;
-
(d) for
the application in the case of a particular race or tribe of
customary law with respect to any matter to the
exclusion of
any law with respect to that matter which is applicable in the
case of other persons; or
-
(e) whereby
persons of any such description as is mentioned in clause (3)
may be subjected to any disability or restriction
or may be
accorded any privilege or advantage which having regard to its
nature and to special circumstances pertaining
to those persons
or to persons of any other such description, is reasonably
justifiable in a democratic society.
-
- (5)
Nothing contained in any law shall be held to be inconsistent
with or in contravention of clause (1) to the extent
it is shown
that it makes reasonable provision with respect to
qualifications for service as a public officer or as a
member of
the disciplined force or for the service of a local government
authority or a body corporate established directly
by any law.
-
(6) Clause
(2) shall not apply to anything which is expressly or by
necessary implication authorised to be done by any such
provision
of law as is referred to in clause (4) or (5).
-
(7) Nothing
contained or done under the authority of any law shall be held to
be inconsistent with or in contravention of
this article to the
extent that it is shown that the law in question makes provision
whereby persons of any such description
as is mentioned in clause
(3) may be subjected to any restriction on the rights and freedom
guaranteed by arts. 19, 21,
22, 23 and 24 being such a
restriction as is authorised by arts. 19(2), 21(5), 22(2), 23(2)
or 24(3), as the case may be.
-
(8) Nothing
in clause (2) shall affect any discretion relating to the
institution, conduct or discontinuance of civil or
criminal
proceedings in any court that is vested in any person by or under
this Consitution or any other law.''
-
p105
-
- It
was then submitted that the office of the President in Zambia is
a creation by art. 37 of the Constitution. The executive
power of
this country is vested in the President who exercises it either
himself or through his subordinates according
to the provisions
of the Constitution. The meaning of executive power was then
defined as: what remains of the function
of the Government after
legislative and judicial powers have been taken away. It is not
limited to the execution of the
laws and, provided it is not
forbidden by the law, action by government need not wait upon
legislation expressly empowering
government to do it. The
formation of policy and the preliminary steps necessary to
implement it by legislation come within
the executive power.
- The
directive of the President of 1st November,1990 constitutes a
formation of policy and the preliminary steps necessary
to
implement that policy, it was contended. As such, went on the
submissions, the directive in question was and still is
an act by
virtue of a written law or in the performance of the functions of
any public authority. The Constitution dictates
that such acts
should not be 'discriminatory', it was submitted. It is
irrelevant, went on the submissions, that the directive
may not
have been followed up by written instructions to the
editors-in-chief or that the editors may have ignored it.
Given
this state of affairs, was this exercise of executive power
justifiable under the Constitution or any other law,
it was
asked? In answering this question the submissions argued that the
President can only exercise his executive power
within the
provision of the Constitution, which is the instrument that has
created that office (of President). In the exercise
of that
power, went on the submissions, the provisions of arts. 22 and 25
of the Constitution have to be respected. The
attention of the
Court was then drawn to the fact that the word used in art. 22 of
the Constitution is 'hindered' and not
'prevented' or 'stopped'.
One case where this word ('hindered') was construed by the Privy
Council was cited. This is the
Maltese case of Olivier
and Another v Buttigieg
[1966] 2 All E.R. 459. The submissions then quoted the relevant
parts of that decision to support the contention in this case
that the petitioners
have been hindered in their enjoyment of the
right given them by art. 22.
-
- It
was further submitted that the President does not have the right
to trample upon the right of private persons in order
to promote
his political party. Further the directive in question does not
fall under any of the permitted derogations
under arts. 22 and 25
of the Constitution. Then the case of Eleko
v Government of Nigeria
[1931] A.C.662 at page 670 was cited in support of the contention
that:
-
- ''The
Executive can only act in pursuance of the powers given to him by
the law. In accordance with British jurisprudence
no member of
the Executive can interfere with the liberty of a British subject
except on the condition that he can support
the legality of his
action before a Court of Justice.''
-
- Another
case is that of Molapo
v Seeiso (1966)
S.S. 150, a Kingdom of Lesotho decision, was referred to, to show
that courts have the power to strike down executive
conduct that
was motivated by partisan political considerations and
consequently discriminatory on people of opposing political
views.
-
- It
was further argued that the President breached his oath of office
by
- p106
-
- giving
the directive in question. The said oath is presribed in The
Official Oaths Act Cap. 436. Having been guilty of such
breach,
it was submitted that he should vacate his office.
-
- In
ending the submissions, it was contended that the President acted
in a discriminatory manner when he gave the directive
in
question. The case of Chilufya
v City of Kitwe 8
(1967)
Z.R. 115 was quoted to show that the sort of considerations that
gave rise to this directive were political and as such
discriminatory.
It was then submitted that this Court should so
be fined, and grant the petitioners their prayers.
-
- (b) The
respondent's
- The
submissions of the respondent, on the other hand, were that this
petition is misconceived. It is misconceived because
the MMD is
not entitled to coverage by newspapers as a matter of right.
Neither are the Times
of Zambia
and the Sunday
Times
obliged to accept advertisements from the Movement. The
discretion of what to publish and what not to publish lies with
the newspapers themselves, went on the submissions. It was then
submitted that the petitioners have no rights, natural
or
accrued, which have been transgressed, as coverage of their
statements and activities is merely a privilege.
- The
submissions then were that the petitioners do not have a locus
standi
in this case as they were not personally aggrieved by the
directive. To be personally aggrieved they are required to prove
that their rights have been transgressed or infringed. The
petitioners have no right to challenge the directive because
it
was not issued to them but to the newspapers, argued the
submissions. In support of this lack of
locus standi
argument two authorities were cited, namely: the late de Smith's
book: Judicial
Review of Adminstrative Action
at page 363. The edition of this book was not stated. At that
page the learned author is quoted saying:
- ''To
be 'legally aggrieved' a person must be not merely dissatisfied
with or even prejudiced by an action or decision. He
must also
have been deprived of or refused something to which he was
legally entitled. . . . He must be able to point to
some
'enchroachment or vested right'. . . .''
-
- The
other authority was R.
v Nicholson [1899]
2 Q.B. 455 at pages 471-2. Since the freedoms alluded to in para.
8(c) of the petition are for enjoyment by the papers, the
petitioners
are strangers to them (the freedoms) and cannot
therefore sue on that basis, it was submitted.
-
- The
respondent then submitted that what the President said on 1st
November, 1990 was not a directive but was merely an
expression
of his dissatisfaction that the papers were giving prominence to
people who were opposed to UNIP. But even assuming
that what was
said was in fact a directive, it was argued that that was in
order because as Head of State the President
has power to give
operational guidelines to parastatal companies. The newspapers in
question fall under a parastatal company,
namely the National
Media Corporation. That being the case it was submitted that the
petitioners have not been discriminated
against. This petition
should therefore be dismissed, with costs, ended the respondent's
submissions.
-
- p107
-
- The
decision
-
At this
stage it is instructive to say that it is common cause in this
case that His Excellency the President of the Republic
of Zambia
held a news conference on 1st November, 1990. This conference was
held on the State House lawns. During that
news conference the
President did say that the newspapers the
Times of Zambia and
the Zambia
Daily Mail should
not be reporting the activities of the MMD; that the Times
of Zambia
was a Party, and the
Zambia Daily Mail
a Government paper; that as such those papers were expected to
toe the Government line; that he was speaking both as President
of UNIP and of the Republic, and the Government Departments and
parastatal organisations should not be advertising in the
National Mirror because that newspaper had told lies about him
and his colleagues in the leadership of UNIP. I will revert
to
these findings later in this judgment but first let me deal with
the question of the locus
standi
of the petitioners in these proceedings which has been raised by
the respondents. It is the respondent's contention, as
already
stated in this judgment, that the order in question was given by
the Head of State to the newspapers and not to
the petitioners.
As such the petitioners are strangers to that order and cannot
found an action on it. It is indeed correct
to say that the order
in question was made to the newspapers. But it was telling the
editors of the papers not to be doing
certain things if the MMD
leadership were involved i.e. to deny coverage to them. Since the
order affected their activities,
it brought the petitioners and
their many members within the provisions of arts. 22(1) and 25(2)
and (3) of the Constitution.
This is especially so in this case
where the reason for the order was that they had different
political views from those
held by the President and members of
his Party. The petitioners therefore have a legal basis for the
petiton before this
Court.
-
- The
next question for determination is the status of what the papers
were told not to be doing. Was that a directive or
not? The
answer to this is that those who listened to that press
conference, and I was one of them, would no doubt say
that was a
directive, simple and clear. I accordingly find and hold that it
was a directive. The reason for that directive
has already been
stated in this judgment.
- The
next issue arising from this finding is: did the directive
discriminate between the petitioners and their members on
the one
hand and these who held views similar to those held by the
President on the other hand? The answer again is in
the
affirmative. The nature of the directive is such that it cannot
command any other interpretation even from those really
hostile
to the petitioners. That discrimination was against the
petitioners and their followers and in favour of the UNIP
leaders
and their members.
-
- Was
that discrimination legal or, put in other words, was the
directive within the provisions of the Constitution: art.
22 and
25? Before I answer this question I would like to examine one or
two aspects which arose in this case. The first
one is whether or
not the office of the President is a constitutional creation.
The answer is that he is such a creation,
by art.37 of the
Constitution.
-
- That
office is therefore a public office. The next question is: who
owns the Times
of Zambia,
the Sunday
Times of Zambia
and the
Zambia Daily
-
- p108
-
- Mail?
The evidence received in this case showed that UNIP, through its
wholly owned company called the Zambia National Holdings
(ZNHL)
Limited, purchased the Times Newspapers Zambia Limited from
Lonrho. The money used to pay for that purchase was
a loan partly
from the Zambia National Provident Fund (ZNPF) and partly from
the Zambia State Insurance Corporation (ZSIC)
Limited. I have
accepted this evidence since there was no evidence countering its
validity. The ZNPF and ZSIC are part
of what are called
parastatal companies. Under the Zambian arrangement, those
companies are regarded as public companies.
Their assets and
liabilities are thus public assets and liabilities. This means if
they are financially sound some of their
funds can be used by the
Govenment on projects or requirements of a national stature.
Similarly if they are in financial
doldrums, the Government will
bail them out by pumping in public monies. It is because of this
public nature of these companies
that there is even a
parliamentary committee of parastatal companies. This committee
scrutinises the activities of those
companies and submits reports
of its findings to the National Assembly. Having said these, it
is my view that there was
nothing wrong for a parastatal company
to have extended loan facilities to a UNIP owned company as was
done by the ZNPF
and ZSIC. Being loans, that company is required
to pay that money back, with interest I suppose, to those
institutions
if it has not already done so. It should I think be
pointed out that now that Zambia has reverted to multi-party
politics,
if loans from parastatal companies are still found to
be necessary by UNIP, or its companies, such loans must also be
available
to other political parties or their companies. It is
not just or moral for one political party to be enjoying benefits
deriving from institutions of a public nature. All the people of
Zambia irrespective of their political affiliations are equally
entitled. These could be the benefits accruing from the Civil
Service and/or parastatal companies, District Council Houses
and
markets, to mention only these public insitutions and amenities.
Even a GRZ personal to holder car is expected to serve
the people
of Zambia at large in that the services which it enables the
particular officer to whom it has been given to
perform have to
benefit society at large and not just a section of the society
which identifies itself with the political
party that may be in
power at a given time.
- Coming
back to the ownership of the newspapers, on 16th January, 1989
the National Media Corporation Limited was incorporated.
As
already shown five companies were transferred to this new
company. The Times
Newspapers
Zambia Limited and the Zambia
Daily Mail
Limited were some of those companies. On 1st August, 1990 share
transfers were executed which transferred all the shares
(99 800
in number) Zambia National Holdings (ZNH) Limited had held in the
Times
Newspapers Zambia Limited to the National Media Corporation and
the 200 shares held by Petronella Chisanga (Mrs) to Mr
George
Pelekamoyo. The principal shareholder in National Media
Corporation is the Ministry of Finance and National Commission
for Development Planning. National Media Corporation is thus
owned by the Government of the Republic of Zambia and not
by
UNIP. This means that the Times
of Zambia
and the Sunday
Times
which comprise the
Times
Newpaper Zambia Limited are owned by the Government of this
country.
-
- p109
-
- As
for the Zambia Daily Mail Limited the evidence showed that it was
incorporated by the Government of Zambia. I am satisfied
that up
to this point in time the Government is still the principal
shareholder. Even the other shareholders have been
such
shareholders as officers of the Government and not in their own
private capacities. The Zambia
Daily Mail
is therefore a Government paper as well.
-
- This
finding is important because if the newspapers had been privately
owned by UNIP, or indeed any other person or body,
then their
management would be at liberty to determine what to publish in
them and what not to publish, subject of course
only to legal
restrictions such as the interests of security, public order,
morality or public health, to mention only
these.
-
- The
next issue to look at and determine is whether when the President
gave this directive he did it in the course of his
public office
of President of this country. The answer is in the affirmative.
The occasion was an address to the nation
by him as its leader.
This nation embraced all the people of different political
shades. As such he could not have addressed
them in any other
capacity than that of Head of State.
-
- I now
revert to the question of the legality or otherwise of the
directive. I have already held that the directive was made
by the
President in the course of his official office.
- That
directive was discriminatory of the petitioners and their cadres.
The reasons for the discrimination was that they
had held
different political views from those of the President and his
members. The newspapers which were given the directive
are owned
by the Government. In the light of these findings, the directive
would be unconstitutional unless it falls within
one of the
permitted derogations. The first such derogaton is consent of the
victims of the discrimination. In this case
none of the
petitioners consented to his being excluded from the enjoyment of
the freedom of expression. The directive
in question was not a
written law as it was not enacted by Parliament in order to
attract the considerations of art. 22(2)(a),
(b) and (c). So
those derogatons under that article do not apply here. But the
directive fell within the 'in the performance
of the functions of
any public office' part of art. 25(2) of the Constitution. Clause
6 of this art. (25) provides that:
- ''Clause
2 shall not apply to anything which is expressly or by necessary
implication authorised to be done by any such
provision of law as
is referred to in clause (4) or (5).''
-
- Article
25 has already been reproduced in this judgment. The directive in
question does not fall under any of the provisions
made in Clause
4 and 5. It does not even fall under (e) of Clause (4) of art. 25
as the sort of discrimination that was
made by this directive is
not reasonably justifiable in a democratic society. A democratic
society allows for differences
in people's political views.
- The
next question is: did this directive constitute a hindrance of
the petitioners from their enjoyment of their freedom
of
expression. My very considered answer is that it did. It did
because in order for them or indeed anybody else to fully
enjoy
this freedom they must be able to receive and publish
information. The receipt part is what I would call an inlet
of
- p110
-
- information
to the person. The publication is the outlet of information from
that person to another person or other persons.
If either of
these, inlet or outlet, is blocked without the consent of the
individual in question and without any legal
justification for
the blockade, then that is a denial of the constitutional freedom
of expression. This is especially so
where the blockade is
effected by means of a piece of legislation or by any person in
the performance of the functions
of any public office or public
authority. Since the petitioners were not allowed to publish
their views on matters political
through the Government
newspapers, and by necessary implication even through radio and
TV, they were denied the enjoyment
of their freedom of
expression. Thus they were hindered from exercising their said
right. I have found and held that the
directive in question, and
thus the hindrance already explained, was unconstitutional and
therefore illegal. As President
of the Republic of Zambia, His
Excellency the President whose GRUND NORM is the Constitution of
Zambia, is not allowed
by the law to make pronouncements which
are contrary to any provision of the Constitution. Unless the
Constitution is amended,
everybody from the President down to the
commonest of the common man is obliged to follow to its letter
what it says. And
this is so whether it is in a one party or a
multi-party political arrangement. Since the directive in
question was unconstitutional
it is hereby quashed.
-
- This
then brings us to the next point, namely how newspapers of public
ownership, such as the one this judgment has been
concerned with,
are supposed to operate. My considered answer to this question is
that in the case of newspapers they are
supposed to be run on the
basis of journalistic princples and ethics free from any
outsider's interference. Those principles
dictate the coverage of
all newsworthy events regardless of the source of such news.
Anything less than this, and it is
very easy for the general
public to assess whether or not a given newspaper is working
according to sound journalistic
principles and ethics, is not
acceptable from a public news medium - print or other. In
respect of other public companies
the President may put his views
to the board of directors. It is up to the members of the board
to either accept those
views and adopt them as those of the board
or to reject them. This is because not all proposals made by a
Head of State
may be in the best interests of a given public
company. Even public companies have to be run on sound financial
bases.
Public money is involved in those companies and that money
must be put to work in order to realise profits. It should not be
misunderstood that this Court is saying that everything that
leaders of any given political party say must be published
by
public newspapers must be so published. What to publish and
not to publish is in the discretion of the editors. But
that
discretion must be exercised fairly and reasonably, otherwise the
paper or papers in question would not be working
according to
sound journalistic principles. All the people of Zambia, as
already stated, are entitled to a fair share of
airing their
views through these newspapers. That share should not be based
on political opinion, race, sex etc. considerations,
which have
been prescribed by the Constitution as already seen.
-
- Lastly
I would like to look at the issue of the sort of news coverage
the MMD leaders were receiving before and after the
1st
November news conference. As I have already said the discretion
of deciding what not
-
- p111
-
- to
publish enjoyed by newspaper editors is capable of an objective
assessment. From the evidence placed before this Court,
especially that of PW1, it is clear that the MMD received very
grudging publicity from the newspapers prior to 1st November.
The
same attitude was shown by the ZNBC.
- After
the news conference in questions that sort of attitude continued
in the Times
of Zambia
until there was a change of leadership. Since that change that
paper has endeavoured to report the activities of all the
political parties without discrimination. This is as it should
be.
-
- As
for the
Zambia Daily Mail,
I have found the following:
- The
article in P23 was a report of the MMD actitivies. The article in
exh. P22 was not of an MMD activity but of court proceedings
against some members of that organ. The article P24 concerned MMD
activities. The article in exh. P25 concerned news about
the MMD.
The article entitled 'MMD denies UNITA link' in exh. P26, about
the MMD leadership's reaction to some allegations
against them
by the President, was news about the MMD. The other article in
that same newspaper was not MMD news. It was
a report of
proceedings in the National Assembly. The article in exh. P27
talked about alleged threats made against MMD
members in Choma.
The source of that piece of news was an MMD official.
- Acting
on that revelation the police in the province were informing the
people of Zambia that the allegation was being investigated.
I
would put that article as an MMD - initiated news item. The
article in exh. P28 was an MMD news item. The article in
exh. P29
was also another MMD news. And so was the article in exh. P30.
- This
means that between 3rd November, 1990 and 25th December, 1990
there were eight articles in the Zambia
Daily Mail about
the MMD. It is of course true to say that all those were
post-this-suit publications. Be that as it may I am not able
to
say that these publications were made because of this suit. I
would therefore give the benefit of doubt to the Zambia
Daily
and hold that the publications were made on the professional
journalistic assessment of what was newsworthy and what was
not
newsworthy by the editors. That was reasonable publicity given to
the MMD during that period.
- When
all is said and considered I find and hold that the petitioners
have succeeded in their prayers under (a), (b), (c)
and (d). I
also award them the costs of this action.
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