III. THE RIGHT TO FREEDOM OF EXPRESSION

Summary

President Chiluba has made and continues to make statements of commitment to the principles of freedom of expression. But there is a critical disjuncture between the rhetoric that he espouses and the government's current practice. The state has continued to criminalize freedom of expression by bringing criminal charges against newspaper reporters and editors. Most significantly, the state tried to introduce a bill that would have forced journalists to register with the state, stripping many journalists who were deemed ineligible by the bill of the right to work. Those not in compliance would face jail terms and fines. It has not, as of this writing, been withdrawn. Concern has been expressed that absent the state's need to present itself in a favorable light to the donor community, the bill may be re-tabled, and other forms of harassment of the media will intensify.

The MMD Government's Policies and Positions: on the Record

The MMD's 1991 Manifesto, its political platform during the first and second multiparty elections, states the party's unequivocal commitment to ensuring that basic and universal human rights are recognized and enshrined in the Constitution. The manifesto makes specific mention of, among other rights, the right to free expression, and worship.9

With specific reference to the media, the manifesto states:

The MMD believes that freedom of expression and the right to information are basic human rights. As such journalists will have to play an important role in promoting democracy and development in an MMD-led government. All bona fide journalists, both local and foreign, will be accredited to perform their duties without hindrance.

In addition, the 1991 Constitution of Zambia, which was endorsed by the MMD, makes specific reference to the press in Article 20(1) of Part III, which says:

20 (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 impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons;

(2) subject to the provisions of this Constitution no law shall make any provision that derogates from freedom of press.

In parliamentary speeches and policy presentations, the MMD government has continued to pledge its commitment to freedom of expression. In the most recent briefing paper, the April 1997 Brief on the Government's Governance and Economic Reform Programme, which was distributed to the international donor community before the April 25 pre-Consultative Group Meeting, the MMD stated its commitment to freedom of expression as part of "substantial and irreversible progress" made in the implementation of a democratic and free society.10 In a section entitled "Institutional Framework," the government says it fully recognizes the "critical importance of an effective institutional framework as a prerequisite for sustenance of democracy and good governance" and its need "to play another crucial role of providing checks and balances." With specific reference to the freedom of expression, the briefing states:

10 (e) Freedom of Expression-The Government fully subscribes to the principles of freedom of assembly and expression as fundamental pillars of democratic governance. It is for this reason that the Government has completely liberalized the media industry. The monopolistic ownership of the media which prevailed under the previous government is now a thing of the past. Any individual or organization is free to invest in newsprint, radio and television broadcasting. Indeed the government has granted television broadcasting licenses to individuals and private organizations. To date, three private radio stations are happily operating in the country.

At the pre-Consultative meeting held in London on April 25, Finance and Economic Development Minister Penza reiterated much of what was said in the previous briefing.11

In its formal statements, the MMD government appears to be committed to freedom of expression and privatization of the media. In practice, however, the state has kept a tight rein on the media. The state continues to control television as well as the mainstream newspapers, which constitute some 90 percent of print media. They include two dailies: The Times of Zambia and The Zambia Daily Mail; two Sunday papers, The Sunday Mail and The Sunday Times of Zambia; and one weekly paper, The Financial Mail. All of these newspapers are posted on the Internet on the Zambian homepage, ZAMNET, at government expense.12 For the most part, the state-owned media take a strong MMD-line, which is usually uncritical if not unabashedly propagandistic. This was particularly evident in the run-up to the elections.13

The Times of Zambia has in recent months run into financial difficulty, and pressure to privatize has been resisted. Information Minister David Mpamba told parliament in February that The Times and The Daily Mail would not be sold, despite the fact that The Times owes U.S.$400,000 to the South African newsprint suppliers. He said it was essential for the government to spare government media from privatization.14 The Post of April 24 reported that Mpamba had disclosed that taxpayers would be bailing the paper out and that 125 workers had been retrenched to cut costs.

The Government's reference to the privatization of radio is also misleading. The fact that three radio stations have been privatized is not in itself remarkable given the mushrooming of independent and community radio all over the African continent. In Zambia, the process of deregulating the radio stations has been shrouded in secrecy, and while deregulation started in 1994, those radio licenses that have been granted, apart from the three commercial stations, have mostly gone to Christian groups.15

Radio Phoenix is one of the private commercial radio stations without a religious focus, and broadcasts mostly music. French academics, Jean-Pascal Daloz and Katherine Verrier-Frechete, from the University of Bordeaux, concluded in a study of Radio Phoenix that:

The so-called freedom of speech enjoyed by Radio Phoenix is actually fairly limited. The station, located at the top of one of Lusaka's highest buildings, is under constant surveillance. Paying a first visit to the radio team in July 1996, one of us was surprised to encounter an armed soldier at the door of the elevator and another one guarding the broadcasting studio. Officially the aim was to deter anycriminal attempt, but we suspect the real purpose to be the removal of any unwanted individual. Moreover, Radio Phoenix, being privately-owned, must rely, as any commercial radio, on advertising revenue to ensure financial survival, and eventually some profits. Once again we must wonder whether the independence of the station is not de facto limited by its need to please major clients. Considering the fact that the Zambian political elite and the local business community are closely intertwined, to discontent advertisers would equate to dissatisfying the government. The will to keep a certain neutrality in the hope of attracting the widest possible audience also imposes some limitation on the radio's political involvement.16

Further, the government's claims to "having completely liberalized the media industry" are false. The Constitutional Amendment Act (1996) did not include any of the Media Reform Committee's 1993 recommendations on press freedom, and none of the committee's recommendations have been implemented. These recommendations included privatizing the state newspapers and television stations and making media ethics and practice the subject of self-regulation by journalists' associations and other media groups with no statutory power. The committee also identified "at least thirteen sections of the Penal Code which directly affected freedom of the press," which it recommended be amended. These included Section 53, "Prohibited Publications," which empowers the president to ban publications in the public interest; Section 60, "Seditious Intention," which makes it an offense to "excite disaffection against the government;" and Section 69, "Defamation of the President," which is punishable by up to three years imprisonment.17 None of these provisions have been modified.

Personnel of the privately-owned or independent press, comprised by newspapers such as The Post and The Chronicle that are highly critical of the MMD-establishment, have encountered serious harassment and intimidation and been subject to numerous criminal charges under the Penal Code. In the period under review, the most serious infringement of freedom of expression was the introduction of the Media Council Bill, which after protest was not tabled, but not abandoned. The bill is discussed in a separate section below.

The MMD Government vs. the Independent Press

The MMD government has waged a persistent and vociferous campaign against the independent press, specifically targeting individual editors and journalists. Instead of allowing freedom of expression and opinion to flourish, the Chiluba government continues routinely to criminalize the work of journalists by resurrecting colonial legal provisions and old legislation from three decades of one-party rule. At the present, there are more court cases against journalists in Zambia, with the possibility of lengthier prison terms, than anywhere else on the continent. Seemingly, the state's intention is to jail its most outspoken critics in the media and to financially incapacitate the independent press through lengthy and expensive court cases. Further, the cases are routinely heard in courts outside the district of Lusaka, thereby forcing defendants to travel to and from outlying courthouses in remote districts. Editors have complained that it is difficult to publish a paper when journalists are spending their days involved in court cases.

A case study of The Post's relationship with the government provides numerous examples of the government's harassment of the independent media.18 The Post was launched in 1991, several months before the MMD government came to power. In its mission statement, it made a commitment to hold the new government accountable to the electorate, thought it has never had a chance to fulfill this promise. Since it was started, The Post has been served with more than 100 writs. Editor-in-chief Fred M'membe and some of his senior editorial staff have spent weeks in detention, several of them facing the prospect of twenty-five-year maximum jail terms in ongoing court cases.

In the run-up to the November 1996 elections, the press underwent a barrage of assault. Human Rights Watch/Africa documented many of these instances of abuse.19

Some of the most glaring violations were:

* February 5, 1996: President Chiluba banned edition 401 of The Post under section 53 of the Penal Code after an article appeared that alleged that the Zambian government planned to hold a referendum to adopt a proposed constitution at little notice to the public. Armed police searched the newspaper's offices for ten hours, looking for "classified" documents. Editor-in-chief Fred M'membe, editor Bright Mwape, and reporter Masautso Phiri were arrested and charged under the State Security Act for possessing and printing classified documents. If convicted, the three defendants could have faced a maximum of twenty-five years in prison. The state sought to use State Security Act to criminalize and punish legitimate investigative journalism and to suppress discussion of public affairs. After being brought before the court several times, the three journalists were recently acquitted on May 22. Presiding judge Chitengi said that the article in question that had allegedly included classified information was about a referendum, a decidedly public matter. The judge ruled that referenda: "are the known lawful ways of asking the general citizenry to decide by plebiscite certain contentious issues which the government does not want them to decide on its own. The Zambian constitution provides provisions for referendum. . . and there can be no secret about an election in these days of transparency, the revelation of which should invite stiff penalties under the State Security Act."20

* On February 22, 1996, the Zambian parliament made an unprecedented decision to find in contempt and sentence in absentia, to prison for an indefinite term, The Post's editors, M'membe and Mwape, and a freelance columnist, Lucy Sichone, for publishing an article that criticized a speech made by the vice-president and other ministers. The three were summoned to appear before parliament but went into hiding. The government offered a K2 million (U.S.$1,550) reward for information leading to their arrest. On March 4, M'membe and Mwape surrendered themselves voluntarily to the police, and they were held in cells formerly used by death row prisoners until March 27. They were then released as a result of a High Court judgment by Justice Kabazo Chanda, who ruled that parliament was wrong to put them on trial and sentence them in absentia. There is speculation that this ruling influenced President Chiluba's decision to remove Justice Chanda in January 1997.21

Outstanding charges against The Post that are still before the courts include the following four cases:

* "Defamation of the president": a charge stemming from a June 13, 1995 article that claimed that President Chiluba had a child by a Zairian mistress. Fred M'membe and Masautso Phiri were detained overnight before being charged and released. There have been numerous hearings of the case before the court, but its resolution is still pending.22

* "Defamation of the president": a charge that dates from April 1994 when M'membe and Mwape were arrested after an article reported that Princess Nakathindi Wina, a former cabinet minister on trial for alleged drug-trafficking, had said from the dock that the president was a "twit."

* "Causing fear and alarm": a charge that dates from August 1994 from a report that the United Nations had accused Zambia of assisting Union for the Total Independence of Angola (UNITA) rebels in neighboring Angola.

* "Defamation of the vice president": despite Masautso Phiri having been sentenced to a three-month jail term for contempt of court, General Miyanda continues to press with the libel charges for defamation.

Freedom of Expression since November 1996

The harassment and abuse of journalists has continued since the elections, though in different forms. There have not been any armed paramilitary raids and sieges of newspaper offices like the ones of The Post offices prior to the elections; nor have there been new charges brought under the Treason or State Security Acts. However, violations of freedom of expression have continued, albeit in more subtle forms, despite the increased international scrutiny and donors' threats to further withhold crucial balance of payments support. As one journalist remarked: "One has the sense that in the present climate the government are restraining themselves. We are bracing ourselves for what might follow."

Immediately after the elections, criticism of the election process and results drew fire. Thereafter, reporting on the presidential petition was subject to government attacks, as were reports on possible coup attempts. From March to April, the proposed Media Council Bill dominated the dispute between the state and journalists, including those in the state-run media who also protested the bill.23 Since November 18, 1996, four journalists from the independent press have been imprisoned for their writing and had criminal charges brought against them; six journalists from the state-run television and information service were suspended and then dismissed.

In the most-publicized case-the three month imprisonment of The Post's Masautso Phiri for contempt of court-the government's human rights record took a marked turn for the worse. Phiri was the first Zambian journalist to be jailed for contempt of court after he wrote a column that stated that "there was a rumour doing the rounds in Lusaka" that judges were accepting bribes to rule in President Chiluba's favor in the presidential petition. The most disturbing element of this case was the apparent collusion between the state, the vice-president and the judiciary tojail Phiri. Not only was Phiri's freedom of expression denied, but the case also revealed the absence of an impartial judiciary. Phiri was sentenced, with no right of appeal, by judges who held personal grievances against him for earlier articles he had written about them and their alleged misconduct.24

At his inauguration immediately after the November 18 presidential election, President Chiluba revisited the usual themes of the move from a one-party state to a democracy and the MMD's oft-stated commitment to a free press.

My government recognizes the important role the press play in the democratic process. It is for this reason that my government has given media in Zambia unparalleled freedom in the history of our country. Thus, insofar as press freedom and communication in general are concerned, our country has tremendous potential to begin the next five years confidently. Five years ago when we moved from a one-party political system that was quickly being pulled down in Africa and elsewhere in the world, media like other sectors, were a virtual monopoly of the state. Today, thanks to the deliberate policy of the MMD, and indeed the wish of the people of Zambia, the scenario has changed. . . .

But Chiluba also sounded a warning note to the press, stating:

While on this subject I want to caution our colleagues in the media that irresponsible reporting can lead to grave consequences for the country. The press freedom we enjoy today could be lost tomorrow if we ignore the concepts of responsibility, balance and fairness in our operations. It is important for the media to realize that it has a duty and responsibility towards the creation of a responsible citizenry.

During this period, the government continued to use harassment to silence its critics in the media. On the day after the elections, November 19, Musole Kaambeu, a journalist with the Zambia Information Services, was threatened with dismissal by the Lusaka provincial deputy minister, who complained about Kaambeu's coverage of his re-election.25

On November 20, The Monitor editor Jowie Mwiinga was questioned at Lusaka police headquarters regarding a report which claimed that the chairman of the Zambian Democratic Congress (ZDC) had asked President Chiluba to cancel the November 18 elections. Two days later, the offices of The Monitor were searched by police.26

One week after the elections, on November 24, six journalists working for the state-owned and government controlled media were suspended indefinitely from their jobs after allegations that they had been on the payroll of the Zambia Independent Monitoring Team (ZIMT).27 One journalist was fired immediately; two others were dismissed several months later. The ZIMT had won the government's ire for its criticism of the election process, in particular ZIMT chairman Alfred Zulu's statements that the elections were rigged. The ZIMTs former vice-president, Isaac Zimba, called the allegations a conspiracy at an MMD-sponsored press conference and urged the organization to "disassociate" itself from Zulu's statements (ZIMT later described Zimba as a renegade and MMDplant.)28 Zimba named six journalists from the state broadcaster-the Zambia National Broadcasting Corporation (ZNBC)-and the Zambia Information Service (ZIS) and said that they had been paid by ZIMT "to project a positive image of the organization and promote the ideals of the opposition." He accused the six of favoring Zulu and AFRONET executive director Ngande Mwanajiti in their programs.29 The six-Zambia Information Service deputy director Nalishebo Mundia, ZNBC commercial manager Abias Moyo, ZNBC sub-editor Gershom Musonda, Radio 2 manager Charles Banda, Kitwe-based ZNBC news editor Dominic Chimanyika and ZNBC TV personality Chibamba Kanyama-were indefinitely suspended from their jobs and threatened with prosecution the next day.30

This came on the heels of a directive from Information and Broadcasting Permanent Secretary Laurah Harrison who had been present at the Zimba press conference. She stated that the journalists did not have the right to reply to the allegations. On November 26 Kanyama was dismissed for "dishonest conduct."31 Dominic Chimanyika and Abias Moyo were reinstated on January 13, 1997. On March 14, Gershom Musonda was fired from his job at ZNBC. On the same day, Charles Banda received a letter from Mwansa Kapeya, acting controller of personnel and training, at the ZNBC stating that,

After thoroughly investigations [sic] in the matter, Management finds the allegations baseless and would therefore like to exculpate you from the matter.

The letter proceeded, however, to inform him of his dismissal on the grounds of a "conflict of interest" between a company owned by he and his wife and the broadcasting corporation.

Charles Banda is challenging this decision. Mundia Nalishebo remains suspended at the time of writing and is unable to travel as he cannot engage in international travel as part of the terms of his suspension. If he were to travel abroad without permission from ZIS, he would lose his job immediately. He told Human Rights Watch/Africa about his frustration in April.

I am suspended and I hear nothing although I know that people like Charles Banda have been told officially that Zimba's allegations were baseless. I can't plan anything and I can't travel outside Zambia until a decision is reached. For example I am a board member of the Southern Africa Film Festival but can not attend the April meeting in Harare because of my suspension.32

Mundia Nalishebo wrote to the acting permanent secretary of information and broadcasting services on April 18, requesting permission to travel to Harare for the meeting on April 24 and 25.33 In reply MC Chalimbaba, the acting permanent secretary wrote:

I acknowledge receipt of your request of 18th April, 1997 regarding the above underlined subject matter.

However, since you are still on suspension as per the contents of MIBS/ZIS/1411 S. 57376 of 26th November your request cannot be processed.34

Mundia Nalishebo continues to wait for a decision on his case and remains banned from international travel.

On November 25, news editor Emmanuel Chilekwa and deputy editor Onassis Mandona, both of The Chronicle, were arrested and questioned by detectives for two hours. The interrogation regarded a report that had been published on November 22 which quoted an official of the Zambian Democratic Congress (ZDC) opposition party who called for the "isolation" of President Chiluba. Detectives demanded that the journalists reveal their sources, but they refused.35

On November 27, Electoral Commission chairman Justice Bobby Bwalya threatened The Post reporter Kunda Mwila with arrest for inquiring about a week-long delay in the publication of election results from some constituencies and asking when the local government elections would be held. Bwalya refused to answer questions in his office, and when he saw Mwila talking to Elections Office acting director Joel Sikazwe, he threatened the journalist that if he did not leave he would order his arrest. "Elections are over, what else do you want," Bwalya shouted.36 The issue of the delay in results was later taken up by election monitoring groups as an indication of irregularity.

On December 8, the Lusaka High Court granted an interim injunction to UNIP president Kenneth Kaunda, stopping ZNBC from airing a State House-prepared documentary, Trail of Deceit, that alleged that Kaunda and The Post had robbed Zambia of donor support. The documentary asserted that donor aid had dried up because of a campaign against the MMD government launched by Kaunda in conjunction with the "gutter press." The documentary was supposed to have been aired that night. A UNIP spokesperson said that they had been compelled to block the screening because it had not given them the opportunity to present their side of the story.37 The Post disagreed with the injunction, saying that it set a bad precedent that could be used to block publications and broadcasters in the future. Later, on January 28, the injunction was lifted by High Court Judge Edmond Sifanu who said that an injunction should not be seen to interfere with the public's right to be informed.38

On December 19, Information Minister David Mpamba accused the tabloids of mounting a crusade to smear the image of Zambia abroad. He said they needed to correct this picture.39

From mid-December, the pattern of attacks against the independent press changed. The case against The Post's special projects editor Masausto Phiri started on December 17 when Vice-President Brigadier General Godfrey Miyanda sued him and the Post Newspapers for criminal libel for the publication of a December 11, 1996 Post Card column, "Praising God Loudly." The column alleged that seven Supreme Court judges were offered K14 billion (approximately $U.S. 10 million) to dismiss the opposition petition challenging President Chiluba's election. In his complaint, Miyanda alleged that Phiri and the Post Newspapers "published defamatory matter contrary to section 191 of the Penal Code, affecting the complainant. . . By this publication Phiri and Post Newspapers were understood to mean that Godfrey Miyanda had committed some crimes."40 Miyanda's complaint stated that the implication was that he "had bribed or was involved in bribing" the judges; that he had conspired with other persons to defeat the course of justice; that he had been involved in killing or assassinating the party's political opponents; and that he is a thief and a drug dealer.41

The accused appeared before the court but did not offer a plea, and the matter was adjourned until January 6, 1997. On January 7, 1997 Phiri received a second summons to the Supreme Court to show why he should not be held in contempt of court. The summons was dated December 17, the same day as the complaint from Miyanda.42

By the opening of parliament on January 17, 1997, Chiluba's tone had hardened. In a speech announcing cuts in public spending as a result of decreased donor aid, President Chiluba signaled a clamp down on the media and election monitoring groups which he described as "unpatriotic."43 He announced his intention to introduce legislation establishing a media council to regulate the media, sections of which were "irresponsible." He stressed the necessity of responsibility on the part of the press to justify the government's move to create a legislated body to control the media. While the NGO sector bore the brunt of the attack in the address, the media were drawn into the firing line.

On February 10, Phiri appeared in the Supreme Court. In an affidavit, Phiri said that during these proceedings he was at no time called upon to plead; that as the court did not follow correct procedure, there was no contempt of court; and that his rights had been infringed on in that no person should be the judge of his own case. He argued that three of the judges who heard his case should have recused themselves but did not do so: Deputy Chief Justice Bonavenuture Bweupe was in contact with Phiri over allegations that his daughter was impregnated by President Chiluba's son, leading her to have an abortion which killed her. Justice Matthew Chaila had sued The Post over a story that linked him to an illegal drinking club; and Justice David Lewanika had been in contact with Phiri over allegations that a private trip by the judge to Malawi had been paid for by the government. 44

On February 11, Phiri was sentenced to three months of hard labor by a full bench of the Supreme Court. Phiri was the first journalist in Zambia to be convicted of contempt of court. What had started as a libel suit by the Vice-President against Phiri turned into a criminal case and a jail term with no right of appeal.45 The case underscored the state's impulse to suppress commentary around the petition challenging Chiluba's candidacy as well as the lack of judicial impartiality.

On February 14, Amnesty International declared Masautso Phiri to be a prisoner of conscience. It wrote:

Amnesty International considers Masautso Phiri to be a prisoner of conscience because he has been imprisoned for the non-violent expression of his political beliefs. Freedom of expression is protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Any government institution-including the Supreme Court-should be able to withstand robust criticism, in particular by that country's national press.46

Human Rights Watch /Africa interviewed Masautso Phiri at Lusaka Central Prison on February 16, less than a week after he had been jailed, and witnessed Phiri's children being denied access to him at visiting time. The warder said that they needed ID cards. However, these cards are usually issued to those over 17 years of age, and Phiri's children are all younger.

I'm all right in here. I'm in cell with thirty-seven people. I had been in a cell with seventy but I was recently moved. The cell I'm now in measures some seven paces long by five. I'm in good spirits and I try and keep fit. I'm lucky in that I get food from outside so I try and avoid getting ill. How I ended up in this place is most unfair. Could I get a fair trial when some of the judges were part of the case? We are appealing and I hope for best. Honest justice in Zambia is what is needed.47

On March 3, Phiri was moved from Lusaka Central Prison to Mwembeshi prison to start his hard labor. He was moved back to Lusaka Central on March 6. He and M'membe appeared in court on that day on defamation charges arising from a story that reported that President Chiluba had a child outside of marriage.

When Phiri's case was heard again on March 17, he asked the Supreme Court to review its decision on his jail term. He withdrew an apology he had made before being sentenced and asked the judges to withdraw from hearing his case.48 On March 27, Phiri dropped his application for review of imprisonment because two of the three judges who he had asked to withdraw from the case had refused to do so.49 He was released from prison on April 11 and said that he considered the sentence "illegal." He said he had instructed his lawyers to make an application to the Supreme Court to determine conclusively the law of contempt.50

Human Rights Watch /Africa interviewed Phiri again on April 17, six days after his release. He had been moved several times during his incarceration but was released after having served two months of his sentence.

I was taken to Mwembeshi prison for three nights. But I had no problems there. I was treated well by the warders. I was then returned to Lusaka Central. It remained tough inside but I survived. By the time I was released there were only eighty-one people in my cell. I was relieved to be released; a third of the sentence was dropped because of good behavior.51

As of this writing, the state continues to try to bring additional charges against him. State action against The Chronicle intensified ten days after the initial Phiri charges in mid-December 1996.

Concurrent with the Phiri case, the state prosecuted journalists who worked on the privately-owned The Chronicle newspaper. Three journalists were arrested in the space of a few days. On December 26, Chronicle reporter George Jambwa was arrested by Zambia Army soldiers and detained overnight at the Arakan military barracks when he went to the barracks to deliver a written press query to Army Commander Lieutenant General Nobby Simbeye, following reports that the commander was under house arrest. According to his subsequent account, his hands and legs were chained for several hours while he was interrogated by seven defense personnel. Defense Secretary Jack Mubanga telephoned and wanted to talk to the soldiers who detained him, but they were not there. The next morning, the army handed Jambwa over to the Zambia Police Service who took him to the Lusaka Central Police Station. He was held there for the day and charged with criminal trespass. The Post said a police source told it that they had been instructed to keep Jambwa in a separate cell which had been declared unfit for human habitation.52 The Post had reported this was a result of President Chiluba's fear of rumors of a post-election military coup. Jambwa was reportedly arrested on instruction from a senior officer minutes after sentries had allowed him into the barracks and had issued him with a pass.

ZIMA chairman David Simpson commented on the detention: "Particularly disturbing is the fact that proper information as to his whereabouts, or any action being taken against him was not made available to his editor, family, or the public."53

In another incident that involved both The Post and The Chronicle, a second journalist of The Post was detained. On January 22, reporter Kunda Mwila was arrested and held at Woodlands police station for several hours after conference guards detained a police intelligence officer who was "under cover" and masquerading as a Chronicle newspaper reporter. At a Common Market for East and Southern Africa (COMESA) press conference, the secretary general challenged the officer, Detective Constable Innocent Kanunga, who had introduced himself as a Chronicle reporter, to prove his identity. Mwila overheard the conversation and asked the officer questions about the newspaper's location. A Zambia Daily Mail reporter, who had formerly worked for The Chronicle, asked Kanunga about other journalists on the paper. Kanunga fumbled, and Mwila called the conference security officers to arrest him. Under questioning, Kanunga admitted he was impersonating. "It was part of our professional tactics. We have a right to cover in any way which you can't know. I have been attending all the press conferences in Zambia. We are sent by the state. If I am not here how do you expect the President to know what is happening," he said. Mwila and the security officer confiscated Kanunga's false identity card and took him to Woodlands police station. On arrival, the tables turned, and Kanunga charged Mwila with conduct likely to cause breach of peace. Mwila was locked up for several hours. Chronicle editor Lweendo Hamusankwa said he was going to protest theimpersonation to the inspector general of police and the home affairs minister. "We have reports that we are being followed," he said. "This move by the police to impersonate us may be one of the attempts to monitor our employees."54

Two weeks later, the ministry of information announced it would "expose" journalists who sent "negative" reports abroad on Zambia, tarnishing the government's image internationally. The "false" reports would be given to Zambians so that they may judge their validity, the February 7 issue of The Times of Zambia reported.55

On February 15, State House agents, including presidential aide Evaristo Mutale, abducted Chronicle reporter George Jambwa at gun point at Lusaka's Mabvuto Motel. Earlier that day, Mutale had gone to the newspaper's office three times to look for Jambwa. He threatened Chronicle editor Lweendo Hamusankwa with a gun to retract a story that had appeared in the previous day's edition of the newspaper, entitled, "Presidential aide driving stolen vehicle". That evening, in the company of three friends at a club house, Jambwa was spotted by a state security informer, who alerted Mutale that Jambwa was at the club. Minutes later Mutale arrived with another presidential aide.56 Jambwa was forced into a car by four men who questioned him demanding that he reveal his source for the article. He was detained for ten hours at the Lusaka Central Police Station and then released without charge. According to Jambwa, "They asked me if I was ready to take on the state. I'm afraid for my life but I won't be intimidated. No one has the right to stop me from practicing. It's my constitutional right."

At 5 a.m. the next morning, Chronicle editor Lweendo Hamunsankwa was picked up at his home by police for "publishing false stories." He was detained for two days, questioned, and charged with criminally libeling President Chiluba's aide by publishing a story in the February 11-13 edition, alleging that arms and ammunition had been stolen from Mikango Barracks in Lusaka.

On February 18, Defense Minister Ben Mwila admitted before parliament that a storeroom for the Zambia Air Force (ZAF) detachment on the outskirts of Lusaka had been broken into on January 9, as reported by The Chronicle.57 But, he insisted that the report had exaggerated the magnitude of the theft and that no arms or ammunition had been stolen from the Mikango Barracks armory.

On the same day, George Jambwa appeared in court and was charged with criminal trespass for going to the Arakan military barracks the previous December. Jambwa's arresting officer told the court that the press's query, which was intended to verify rumors that the commander was under house arrest in the wake of the coup plots, was insulting; and, moreover, the officer insisted that the contents of the query were inciting rebellion among the soldiers against the MMD government. His claims that Jambwa did not have a gate pass were suspicious since the visitor's book showed that Jambwa had in fact signed for one.58 Jambwa was ultimately acquitted on April 4. The magistrate, Chibesakunda Muwowo, called the charge a conspiracy to cover up the inefficiency of the military security system, saying she saw no evidence of a crime having been committed.59

During this period, another Chronicle reporter, Boyd Phiri, was arrested and detained at Woodlands police station with Hamunsankwa. Police suspected that Phiri had written the article on the alleged missing arms and ammunition. He, too, was detained until the court appearance two days later. On Monday, February 17, Hamusankwa and Phiri were jointly charged with publication of false news intended to cause alarm.

That evening, Human Rights Watch/Africa interviewed Chronicle editor Hamusankwa at the Woodlands police station.

I was only charged this evening at Lusaka Central for criminal libel, which is non-bailable. I am also charged for causing alarm. That's why you find me here in the police cell. They picked me up early in the morning yesterday, armed to the teeth. It was as if I was a gun-runner or drug-dealer, not a newspaper editor. But I'm okay here at Woodlands, they treat me well. I do have to sort out my own food and drink, but that's normal.

They have picked on The Post. It's our turn. It's to do with the run-up to this Media Council and is all part of a strategy to show that the independent media is irresponsible. That's why George Jambwa, myself and Boyd Phiri are all being harassed. The police are clearly reluctant, but its those State House boys that force them to do such things.60

Hamusankwa and Phiri pleaded not guilty to two criminal charges: in the first count they were charged with publishing false news with intent to cause fear and alarm contrary to section 67 of the Penal Code; and in the second count, they were charged with libel contrary to section 79 of the Penal Code for an article about Evaristo Mutale, senior private secretary to Chiluba, which reported that he was driving a stolen vehicle. The state prosecutor argued that bail should not be granted because the journalists would pose a danger to Mutale's life if released. However, they were each released on a bail of K500,000 (U.S.$386). A trial date for March 20 was set.

When Human Rights Watch/Africa interviewed Boyd Phiri in April, we were told that Phiri's arrest was a case of mistaken identity.

On Monday, plainclothes policemen came with Nellie Mutti, my lawyer, and we went down to the police force headquarters where we recorded a statement. I denied that I was the author of the story in question and [said] that my name had been left there by mistake. The by-line was forgotten to be deleted from the previous edition. I was formally charged at 17.00 hours after having been detained for a day-[it was] March 24.61

Human Rights Watch/Africa visited at The Chronicle offices and was also told that Phiri's by-line had been placed inadvertently from a paste-up of a previous edition of the newspaper. A layout person told us he had made the mistake.62

As of the publication of this report, The Chronicle editor Lweendo Hamusankwa and reporter Boyd Phiri still face charges of causing fear and alarm. Hamusamkwa still faces another criminal libel charge for the February 14 article alleging that Mutale was driving a stolen car.

The government's crackdown of critical reports continued. At a March 22 Freedom Forum meeting in Lusaka, Richard Sakala, President Chiluba's assistant and the only government official present, held up a copy of Human Rights Watch/Africa's November 1996 report on Zambia and said: "This is a good example of the sort of misinformation circulated about the Zambian government in the press."63

In mid-April, Health Minister Katele Kaluma banned the Central Board of Health from advertising in The Post. An official said that they had been told to place advertisements in The Times of Zambia or The Zambia Daily Mail instead.64

The Media Council Bill

The threat of further legislation to control journalists and the press has been a red thread running through MMD government pronouncements for years. Several months after the November election, the threats were translated into draft legislation, and the Media Council Bill (MCB) was tabled. President Chiluba introduced the concept for the bill in his speech on the opening day of parliament.

The intention was to regulate the media and its "irresponsible reporting," he said. "Integrity demands that media practitioners adhere to a standard of ethics that have respect for truth and fairness. . . it is a notorious fact that the nation and indeed the press itself has been brought into disrepute by a section of the media that has chosen to betray the country by publishing and distributing false information about Zambia. This is regrettable and a matter of grave concern," he said.65

Drafted by the attorney general's office and released on April 7, the draft bill requires all journalists to be licensed by a media council that is appointed by the minister of information. Journalists who are not in compliance are subject to a three month jail term, a fine, or both. To qualify for a license, journalists must be eighteen or older and have a Bachelor of Arts in mass communications or journalism from a university or college that is recognized by the council; or they must have completed at least a two-year course in journalism. Under the act, journalists are required to apply for a license or "accreditation" to the registrar of the council who will keep a register of all "accredited" journalists. Accreditation is not automatic, but it is subject to the outcome of investigations of applicants. Applicants are required to pay a fee and submit certificates of academic qualifications, or, for companies, certificates of incorporation. Journalists are required to renew their accreditation annually. Foreign media organizations are required to have Zambian-born partners.66

Among other punitive measures for non-compliance, the bill provides for three months imprisonment for practicing without a license or for giving false details when applying for accreditation. There is also a provision for disciplining journalists who conduct themselves in a manner contrary to "the profession of a journalist" or who engage "in any occupation which is inconsistent with the profession of a journalist." Such journalists would be liable to reprimand, suspension or expulsion.

The draft would allow the public to place complaints with the media council, which is to be empowered to "demand an apology or compensation" from the journalist or media institution for aggrieved members of the public. If found guilty, journalists can be de-registered. The bill states that any journalist who has been de-registered, whose certificate of accreditation has been withdrawn or canceled, has resigned, is not accredited, or whose accreditationhas ceased shall not be entitled to practice. Newspapers would not be allowed to hire non-licensed journalists. Many other journalists would also be stripped of the right to work in their chosen profession.

The bill's intention is clearly to target individual journalists. Because he is an accountant by training, Fred M'membe, editor-in-chief of The Post, would not qualify for a license and therefore would not be allowed to practice as a journalist, serve as a publisher, or own a newspaper. Despite having run a newspaper for six years, this would not be sufficient grounds to qualify for a license, and it would be illegal for him to continue working.

Response to the proposed legislation was immediate. On January 19, the Zambia Independent Media Association (ZIMA) said the bill was unacceptable to the independent media: there was no acceptable substitute to self-regulation. In reaction to the press council announcement, Fred M'membe said President Chiluba was striving to control and manipulate the media. "How can a democrat have the government own and control over 99 percent of the news media?" The intended regulation is not in conformity with democratic principles," he said.67

Deputy Minister of Information and Broadcasting Ernest Mwansa defended the government plan. He told parliament on February 6 that a press council was necessary "to promote democracy and freedom of the press." He continued: "Do we have to wait 300 years and evolve like the United States did just so that we can emulate what they did?" Mwansa accused Zambians who worked for foreign media of lacking patriotism, lying and deliberately distorting information, and abusing freedom of expression. "This freedom seems to have gone slightly out of course" he said.68 On February 20, Information Minister Mpamba announced in parliament that the government had completed the preliminary draft of the Media Council Bill and that it would soon be presented to the House.69

On February 21, Zambia Independent Media Association (ZIMA) established the Independent Media Council (IMC) which it said was to uphold the freedom of the media while ensuring high professional standards and adherence to the principles of responsible and factual reporting. It shared the same constitution and code of ethics as the International Federation of Journalists (IFJ), which sets the basic standard for the performance of the independent media in Zambia. The council was also designed to provide a mechanism for registering and investigating complaints against the media and taking appropriate measures. ZIMA argued that the Independent Media Council, rather than a legislated body, was the best way of maintaining the vital role of the independent media in fostering an open society and democratic governance.70

ZIMA's members include sixty-five individuals, mostly journalists from six independent media organizations: The Post, The Chronicle, Profit (a financial monthly), the PANOS Institute, The National Mirror and the Palesa broadcasting agency. ZIMA is also setting up a legal aid fund to assist its members, whether companies or individual journalists and has persuaded a group of nine lawyers to restrict their fees for handling such cases. The independent council's members are:

- Florence Mumbe, judge

- Dr. Nevas Mumba, Protestant priest

- Ignatius Mwebe, Roman Catholic priest, secretary of the bishops' conference

- John Sangwa, lawyer

- Aick Opok'mensa, Ghanaian journalist, director of PANOS Institute

- Abbe Maine, journalist, head of Panesa news agency

- Jowie Muwinga, Reuters correspondent in Lusaka

- Lucy Sichone, lawyer and columnist

- Arthur Simuchoba, former editor of The Times of Zambia, now with The Post.

The government published its draft Media Council Bill on April 7, and the country's media organizations immediately rejected it and petitioned the government to withdraw it. In a joint statement, the Commonwealth Press Union (CPU), Press Association of Zambia (PAZA), Zambia Media Women's Association (ZAMWA) and the Zambia Union of Journalists (ZUJ) described the bill as "draconian, evil, oppressive, obnoxious and undemocratic."71 Decrying the "punitive criminalization" of press freedom, the protest statement said that freedom of expression was not a privilege "to be handed down at the grace of any power but a fundamental constitutional right." The statement went on to reject the jail terms and fines for journalists who were not or could not be accredited, arguing that journalism should not be regulated like fields such as law and medicine because "one has a constitutional right to one's opinion without requiring a license from anyone."72

The International Federation of Journalists (IFJ) rejected the bill on the grounds that "it was drafted without genuine consultation with the profession." Likewise, the bill lacked reference "to the rights of freedom of expression and access to information," instead providing a "detailed and dangerously wide reference to disciplinary procedures to be taken against journalists." Further, "provisions to incarcerate journalists should not be contained in a press bill. . . a Media Council should not have the authority to deprive a person of his/her liberty." IFJ added that if registration was required, it should not be legislated by government officials; nor should it be handled by the same body responsible for disciplining journalists.73

In reaction to the bill, the state media and independent journalists formed a new alliance that was nearly as strong as the already established relationships between independent journalists. Journalists in the state-run media also saw the need to improve standards and objectivity, but felt the solution did not lie in increasing government control. In the months before the Media Council Bill was withdrawn, the state-owned press carried a number of articles that openly criticized the government's proposal. It was a rare instance of public debate. A headline in the April 16 issue of the Sunday Mail read "Who needs a Media Council?" The Times of Zambia of April 12 carried a story: "FODEP joins human rights groups to condemn proposed Media Council Bill." The Sun, an MMD-partisan paper, ran an article entitled, "Journalists against Media Council Bill" in its April 14-20 issue, while the April 6-12 edition of the National Mirror featured an article called "Government gears to gag journalists." And Zambia's business magazine, Profit, ran an article on the Freedom Forum meeting that said that the government legislation was unwelcome and called for the privatization of state-owned media.74 In the April 8 edition of The Post, the headline simply stated: "MCB denounced."

In an article in The Times of Zambia that explained the government's position, Information and Broadcasting Permanent Secretary Laurah Harrison called the reaction to the bill a "hysterical outburst from the media" and said that the creation of a regulatory framework as proposed in the bill was the most transparent way of doing things. Mpamba, minister of information and broadcasting services, criticized the position of journalists in the state-controlled media: "Why are those in government media attacking us. You cannot work for the government and attack government. I think there is a myopic perception that government wants to undermine journalists."75

Opposition to the bill-on the part of donors, journalists and human rights groups-resulted in a ten kilometer protest march by hundreds of journalists on April 12. Marching journalists from both the state and independent press were joined by the public and representatives from the NGOs. Chanting anti-censorship slogans and carrying placards with messages such as "It's your right to write," the demonstration served to force the government's hand.76 Three days later, Information and Broadcasting Minister David Mpamba withdrew the bill, saying that it had been postponed until further consultation took place with special interest groups. Mpamba said the government was only trying to "ensure professionalism. We have made an undertaking to foreign donors that this Bill will be subjected to public debate. This is purely a discussion paper. It is not yet law."77

He also alluded to the protests mounted by the media: "In order to allow for further consultation of all stakeholders, and principally the electors, the government has deferred the Media Council Bill. . . . The draft bill, published as a discussion paper, has generated considerable debate and emotion among media practitioners and the general public. This is expected in a free society like ours. In order to provide further opportunities for consultation and debate the Ministry of Information and Broadcasting Services will provide optimal opportunities for debate and exchange of views."78 But he cautioned: "Those who express themselves on the pros and cons of the proposed bill should always bear in mind that their views are not the only ones, nor do they exhaust all the views on the matter. Democrats have an inescapable duty and obligation to respect other people's views. . . Democratic long term survival rests on mutual tolerance of divergent views."

Disillusioned with the donors who had challenged the bill's provisions, Mpamba stated: "It is a matter of profound regret that some diplomats accredited to Zambia have taken it upon themselves to issue very crude instructions to the government of the Republic of Zambia. Established norms and etiquette dictate that diplomats conduct affairs in the countries they are accredited to through normal diplomatic channels.79

The introduction of the bill illustrated the Zambian government's practice of projecting a reformed image on the international stage while trying to enact policies at home that directly undermined human rights principles. The draft bill was published, however, just two weeks before the April 25 London donors meeting. Indeed, in the Briefing Paper that international donors received before the pre-Consultative Group meeting in London, the Zambian government tried to downplay the restrictiveness of the Media Council Bill:

10(f) Concern has been expressed regarding the Government's proposal to form a Media Council of Zambia (MCZ). There is some suspicion that the establishment of the Council is intended to control the media and to reduce freedom of the press. However, that is NOT the Government's intention. The objective of the Council is to protect and enhance professional journalism. DraftLegislation has been published in the National Media and lively debate on the provisions of the draft Bill is taking place. The final legislation will take into account the concerns of the stakeholders.

However, in a concluding section sub-headed "Next Steps," the government detailed its determination to forge ahead with this aspect of its governance reform agenda as quickly as possible. The brief states:

11(e) Freedom of Expression-the Bill for the setting up of the Media Council will be presented to Parliament as soon as the on-going consultation with stakeholders are completed.

In his opening remarks to donor countries at the pre-Consultative meeting in London on April 25, Finance and Economic Development Minister Penza restated the government's withdrawal of the draft of the Media Council Bill in order to allow for further debate.80

There is little doubt that the bill was withdrawn because of both domestic and international pressure. Within Zambia's borders, the bill served as a rallying point for civil society and focused attention on the need for the continued involvement of the international community. After the journalists' demonstration, Robby Makayi, chairperson of the Media Liaison Committee, a committee formed to protest the bill, touched on the need for the international community to play an ongoing role in Zambia: "We will make sure that the issue is on the agenda of the Consultative Group meeting. It should be realized that this is an issue of good governance. . . The government should not accuse the media of denting their image because they are doing so themselves. They have made a lot of bad laws, and this is one of them."81 Several ambassadors had raised the matter with the government, and it is apparent that the timing of the consultative meeting was one of the factors that helped force the government's hand. But it remains to be seen, however, in the absence of pressure, if the bill will be dropped or if it will reemerge in another form.82

In his closing remarks at the pre-Consultative meeting in London on April 25, Penza made a claim that the Government of Zambia had neither previously asserted nor subsequently mentioned: speaking before donor nations, Penza said that Zambia would welcome it "if the media were to develop themselves an institutional framework for self-regulation. Under no circumstance would Government regulate the media itself."83

At the Independent Media Council meeting on May 9, Justice Florence Mumba was elected chairperson of ZIMA. After being elected, Justice Mumba said that she believed it to be a good thing that the independent media has led the way in forming a self-regulatory body for its journalists: "The onus is now on the Council to instill confidence in the public by the decisions it will make."84

The independent council's code of conduct has not yet been finalized but its stated aim is to work something like the British Press Complaints Committee, a self-regulatory body that is not state imposed. The council's decisions will not be binding and will only apply to those concerned on a voluntary basis.85

The conflict was of state regulation versus self-regulation conflict. Not surprisingly, all media organizations opposed the government plan, calling it an attempt to curtail press freedom through a statutory censorship council. The Independent Media Council, in contrast, was represented by them as providing a voluntary and self-regulatory body that would work to ensure that the press acted responsibly and was free of government involvement.

(2) Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.

(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Worship is guaranteed in the MMD Manifesto 1991.

Sunday Mail. ZAMTODAY carries news briefs from the Zambian News Agency (ZANA). The Post also appears on the home page. The internet address is http://www.zamnet.zm.

for Lusaka district, under section 90 of the Criminal Procedure Code (Cap.160).

Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.