By Peter Sinkamba

THE OFFENCE OF SEDITION IS REPUGNANT: SHOULD NEVER BE IN ZAMBIA’S STATUTES 60 YEARS AFTER INDEPENDENCE

Zambia Police issued a statement today informing the Nation that my human rights advocate friend, Brebner Changala, has been arrested and detained in custody awaiting court appearance for the offence of sedition.

As I have said time and time again, the offence of sedition should never be in the statutes of a independent country that prides itself of upholding human rights.

Several Commonwealth States have repealed their sedition laws. Among them Kenya (1997), Ghana (2001), New Zealand (2007), the United
Kingdom (2009), Jamaica (2013), Maldives (2018), Sierra Leone (2020), and Singapore (2021). Many of these States have done so precisely because of the potential for, and documented experience of, abuse.

The offense of “sedition”—often characterized as criminalizing the incitement of rebellionagainst the government—is an archaic crime that is frequently used to target political speech. Introduced in the 16th century in England specifically to suppress dissent, sedition laws spread by the British Monarch through the colonies. These laws still persist in some legal systems and while there are reforms underway in some of those jurisdictions, in a fewoutliers, the offense continues to be prosecuted—and in some countries like Zambia there has been a resurgencein cases since 2022.

Sedition laws have been criticized by the United Nations, human rights experts, courts, legislatures, advocates, and others for being a weapon used by governments to violate the right to freedom of expression.

The significant criminal penalties that usually accompany sedition laws have a chilling effect on political debate and can undermine democratic processes.

On their face, most sedition laws share several commonalities. Notably, in countries like Zambia, they do not require any evidence that alleged seditious speech would likely incite violence. The Zambian sedition law is vague and overbroad, allowing it to be misused and manipulated to suppress free
speech.

In recent years, regional courts have also confirmed that sedition laws—among other laws restricting criticism of a government—violate international human rights standards where those laws impose overbroad and unfettered restrictions on free expression.

For instance, in 2018, the Community Court of Justice of the Economic Community of West African States (“ECOWAS Court”) considered a case brought by four Gambian journalists who had been convicted for the offenses of sedition, false news, and criminal defamation under The Gambia’s Criminal Code, which broadly adopted the common law definition of seditious intention. The ECOWAS Court concluded that the law on sedition “espouses expressions
of inexactitude which are also so broad as to be capable of diverse subjective interpretations,” therefore amounting to “inacceptable instances of gross violation of free
speech and freedom of expression.”

The ECOWAS Court held that The Gambia’s law on sedition violated international standards and ordered The Gambia to “immediately repeal
and/or amend” the law.

Similarly, in 2019, the East African Court of Justice (“EACJ”) held that Tanzania’s sedition offense “failed the test of clarity and certainty required” and “hinged on the possible and potential subjective reactions of audiences to whom the publication is made. This makes it
all but impossible, for a journalist or other individual, to predict and thus plan their actions.”

The EACJ also held that the penalty for sedition (a custodial sentence) would be disproportionate unless the government put forward “serious and very exceptional circumstance for example, incitement to international crimes, public incitement to hatred, discrimination or violence.”

Accordingly, the EACJ held that the relevant provisions were incompatible with the Treaty for the Establishment of the East African Community and ordered Tanzania to take the necessary measures to amend its laws to bring them into
compliance.

Usually, these laws are weaponised by a parties in government to punish opposition leaders. Perhaps it high time opposition Members of Parliament considered moving a private member’motion to repeal the sedition laws. Otherwise the cycle of weaponizing these laws against opposition leaders will continue from one government to another.