AREN’T EXISTING ZAMBIAN MEDIA LAWS ENOUGH?

By Gershom Ndhlovu

It is difficult to understand on what basis the government wants to enact a law to regulate the media. This difficulty arises due to the fact that there are enough laws on statute books that do so and some, if not most, of them pre-date Zambia’s independence in 1964.

Vice president George Kunda recently told journalists at a meeting with media organisations representatives that the media should give government a framework of their proposed self regulation failure of which would force government to enact its draft law to regulate the media.

The government appears to be motivated to change the law because of the privately owned The Post newspaper which always seems to find fault with President Rupiah Banda and his government and accuses the paper of “twisting” facts. Matters recently came to a head when ruling party supporters resorted to beating up Post journalists and those from other media organisations who failed to produce identification cards.

In his determination to cripple The Post, President Banda ordered the arrest of Post News Editor, Chansa Kabwela for sending a picture of a woman giving birth outside the University Teaching Hospital, the biggest hospital in Lusaka, at the height of a debilitating strike by medical and paramedical staff countrywide.

But for those who followed media and related laws in Zambia know that, first and foremost, the Zambian Constitution’s Part 3 on the Protection of Fundamental Rights and Freedoms of the Individual guarantees the protection of freedom of expression.

Article 20 of the Zambian Constitution of 1996 provides that”(1) Except with his own consent, a person shall not be hindered in Protection of 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 impart and 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) Subject to the provisions of this Constitution, a law shall not make any provision that derogates from freedom of the press.

“(3) 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 interests 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 lives of persons 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 the registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television; or

(c) that imposes restrictions upon public officers; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.”

Going by the above article, the Constitution protects against passing legislation that has the potential to take away freedom of expression and, as such, the passage of the proposed law announced by government through Mr Kunda would clearly contravene the supreme law.

Anyone aggrieved by the media by way of reportage can fall back on the Defamation Act Cap 68 through civil courts. The Act provides in Section 3 that:

“In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”

The Act also states what defence those sued for defamation can give, notably justification and fair comment.

The government and the Media Ethics Council of Zambia (MECOZ), under the present circumstances in which there is heightened acrimony between the government and certain media organizations, should publicize and encourage the use of this Act. There would be no better regulation than the use of the Act for erring media organisations to be taken to court.

Ironically, it is the delays of the dispensation of justice in the courts of law under this Act that the formation of MECOZ was mooted because media practitioners who gathered at Andrews Motel in Lusaka in 1998, felt that defamations cases took very long to be determined in the courts of law. With the establishment of MECOZ, it was hoped, adjudication would be done quicker outside courts. Whether MECOZ, which The Post has refused to be part of, is doing that or not is something else.

The government equally has recourse to Cap 87, the Penal Code Act which, among other things, provides under section 191 that “any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed "libel".”

Section 192 states that defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation. It is immaterial whether at the time of the publication of the defamatory matter the person concerning whom such matter is published is living or dead. There is a proviso, though, that prosecution of libel relating to a dead person, consent must be given by the Director of Public Prosecutions.

Section 193 further states that “(1) A person publishes a libel if he causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed, to be dealt with, either by exhibition, reading, recitation, description, delivery, or otherwise, so that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person.

“(2) It is not necessary for libel that a defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances, or partly by the one and partly by the other means.”

Again, it is difficult to understand why and how the government is hesitant to apply the law when some of its officials feel that newspapers, radio and TV stations, and indeed, other means of communication are deemed to be committing libel.

Cap 161 Printed Publications states that no person shall print or publish, or cause to be printed or published, any newspaper until there has been registered at the office of the Director (of the National Archives) at Lusaka the full and correct title thereof and the full and correct names and places of abode of every person who is or is intended to be the proprietor, editor, printer or publisher of such newspaper, and the description of the premises where the same is to be published.

Any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine not exceeding three thousand penalty units.

There is equally Cap 111, the State Security Act which spells out sanctions for communicating information prejudicial to the safety or interests of the Republic. Most of the offences under this Act carry a minimum term of 25 years.

What better means of regulation can anyone talk about if not the laws stated above and a myriad others that need to be unearthed? Is the new law going to proscribe lawyers, accountants, teachers and ordinary citizens who have no formal journalism training from expressing themselves through the media, or for that matter, owning media companies? Does the government want people to apply for accreditation to perform what is guaranteed them in the Constitution?

I suppose that Mr Kunda, Ronnie Shikapwasha, the minister of information and broadcasting as well as the executives at MECOZ would do well to look at existing laws instead of going through the expensive motion of making new ones which will fall into disuse at some point or other.

**This article appeared in the Sunday Post of August 16, 2009.

CULTURE MISUNDERSTOOD BY ZAMBIAN POLITICIANS

By Gershom Ndhlovu

In Zambia, the word culture especially as spoken by politicians, is associated with ceremonies such as the Kuomboka of the Lozi in Western Province, Mutomboko of the Kazembe Lunda in Luapula and Nc’wala of the Ngoni in the Eastern Province.
As it has come to be part of the tradition of these and other ceremonies observed around the country, all manner of government officials ranging from the President himself, to District Commissioners, mayors and council chairmen, officiate at these functions which are in some cases tourist attractions in themselves.
For instance, at last month’s Mutomboko Ceremony President Rupiah Banda said culture played a very important role in developing the nation, pointing out that it was the source of strength and unity and that the government had come up with a deliberate policy to promote culture in the country.
President Banda also disclosed that the government had budgeted for K150 million for the construction of a cultural village in Luapula Province. Once constructed, the Mansa Cultural Village would provide a venue for musicians, actors and craft entrepreneurs to showcase and exhibit their works which is good in itself.
The question, however, is: can culture be compartmentalised just to mean matters of traditional ceremonies which are at par with any other carnival held in different parts of the world such as the Notting Hill Carnival of London, Mardi gras in New Orleans in the USA and the Brazilian Carnival, probably the biggest on the globe? Indeed, these ceremonies in Zambia, or carnivals in the rest of the world, have become a part of the wider culture of the places in which they are observed.
By its very nature, culture is a difficult term to define but scholars such as Craig Storti who has written among other books, Figuring Foreigners Out and The Art of Crossing Cultures, describe it as the shared assumptions, values, and beliefs of a group of people which result in characteristic behaviours.
Most, if not all, of the cultural traits that people exhibit are learned from their family surroundings, their immediate society and nation at large. These define how individuals view and react to not only other people of other cultures but also in other cultures in which they find themselves through work as business people, diplomats or indeed as tourists or students.
Harry Triandis in his book, Culture and Social Behaviour, writes of culture as providing traditions that tell people what has worked in the past and makes it easy for humans to pick behaviours that may work again in the present.
Put simply, culture is a way of life of a people and is something that is never taught as such, but something that people pick up in the socialization process in their community. It is, in other words, a catalogue of “dos and don’ts” of a group of people, ethnic groups or whole nations.
It is my argument that culture does not start and end with the Lozi celebrating the Kuomboka in April when their king migrates from the flood plains to higher ground, or when the Kazembe Lunda celebrate their conquest of other ethnic groups some two or so centuries back, or indeed, the Ngoni Paramount Chief tasting the new crop in late February of every year.
Culture is all things, including language which is obvious, that make a Frenchman different from an Englishman, or those social characteristics that make a Finnish different from an Italian, and closer to home, those characteristics that a Luvale exhibits and observes that a Lenje does not; things that a Tonga does and a Tumbuka does not. This is the reason why, strictly speaking, it is difficult to talk of a Zambian “culture” which is homogenous to all the 73 ethnic groups.
All ethnic groups tend to withdraw into their cultural laagers at some point, especially when observing rites of passage such as chisungu when girls come of age, marriages and funerals. You often hear people say “we don’t do this where I come from.” It is also not uncommon for a man or family to engage a friend from a particular ethnic group to negotiate on their behalf if he is marrying from that friend’s ethnic group. This is all about culture.
Apart from the common everyday interactions that are taken for granted, culture is embodied in pursuits such as literature, (the English, for instance, celebrate William Shakespeare as the greatest bard that ever lived), music, architecture, museums and other areas of human endeavour.
It is also around these pursuits that cultural industries revolve such as the film industry reflected through Hollywood, broadcasting houses such as the BBC, the book and newspaper publishing industry, the multi-billion dollar music recording industry of the West. The pervasiveness of the western cultural industries has swamped other cultures, particularly in Africa where people want to imitate what they have watch in cinemas, on TV or read in newspapers and books.
When cultures clash people talk of a “culture shock” which Esprit Global Learning, a company providing cultural coaching services describes on its website as “…an internal response to being in a “strange” culture with no cultural guideposts or familiar cues of one’s personal, social, cultural, physical and business environment.”
Knowledge and appreciation, or the lack thereof, of other people’s cultures could equally lead to the success or failure of business deals. For instance, how a person treats a business card, or meishi, of a Japanese businessman upon being given one determines how the deal goes from there, whether it succeeds or not.
Similarly, most development assistance by western bilateral and multi-lateral donors fails in most areas because the implementers do not take into account local cultures, customs and traditions and try to transplant their own cultures, traditions and customs on recipient communities.
For culture to play its rightful role in Zambia’s social, political and economic spheres, there is need to move away from the idea that culture and related issues should only come alive during cultural ceremonies, but it should be incorporated in all spheres such as tourism and other economic activities by especially understanding cultures of foreigners that Zambians interact with.
Multinational corporations such as Disneyland Incorporated have learnt their lessons when they have tried to transplant their American modus operandi onto other cultures. The best example is Disneyland Paris which nearly collapsed because the French felt that it did not meet their cultural expectations.
Culture in Zambia needs to be understood and appreciated in its totality rather than in piecemeal fashion when it suits the politicians. Similarly, developing cultural industries would not only preserve our diverse cultures, but would provide jobs for a lot of Zambians who otherwise have to depend on elusive foreign investors for their existence.
*This article appeared in the Zambia Daily Mail of 7th August, 2009.

CORRUPTION IN AFRICA HINDERS WESTERN INVESTMENT

“Corruption is not exclusive to Africa, of course. Yet official corruption is bound to be more glaring on a continent where most people live in dire poverty. And the news from Africa, as reported in the International Herald Tribune on June 10 by Celia W. Dugger, is that the fight against such corruption is not going well…

“Corruption is a terrible disease that destroys a country from within. Funds desperately needed to combat poverty and disease and to build roads, hospitals and schools are spent instead on everything from palaces on the Riviera to the acres of shoes made of snakeskin, satin and ostrich that Frederick Chiluba accumulated in a decade as Zambia’s president. Corruption begets corruption, turning ruling elites into self-perpetuating cliques, destroying peoples’ faith in government and law.”

The above passage is part of a recent Editorial in the influential New York Times entitled “Grand Larceny Africa” and this is definitely not good for the continent which is stirring interest in western, particularly American, investors who think that Africa is the last frontier of investment.

The western investors want to emulate the Chinese who have in the last decade poured billions of dollars into Africa by investing in oil exploration, mining and infrastructural development. But unlike the Chinese, the western investors are averse to corruption, lack of transparency and poor governance.

Stories like the on-going court case involving Ministry of Health staff in which K27 billion is alleged to have been misappropriated, the Dora Siliya saga involving RP Capital in the earmarked privatization process of ZAMTEL, etc, all do not give confidence to potential western investors who think that their investments would go down the corruption drain.

But what is very sad is the reaction from the donors who finally appear to be putting a plug on funding to corrupt ministries and departments, and they cannot be faulted for their actions. They have to protect their taxpayers’ funds back home.