When Silence Means Consent: Wynter M. Kabimba, SC ODS, President, Economic Front
There is a common proverb in the English language that “there is wisdom in silence’’. This principle is at times used in criminal law to protect an accused person from possible self-incrimination. But silence can also mean consent.
This is what we see in the High Court action brought in 2018 by Fred M’membe and Cosmas Musumali (2nd Plaintiff) against Wynter M. Kabimba (1st Defendant), Millennium Radio, and the Daily Nation newspaper. The court action came on the heels of some Rainbow Party members who broke away to form the Socialist Party, a democratic right which is guaranteed for them under the Zambian Republican Constitution. The matter was heard and determined by the Honourable Madam Justice S. Kaunda Newa who delivered judgement in January 2021.
Although Fred M’membe was the 1st Plaintiff in the matter, he chose not to appear in court to assert his claim, a decision I thought was wise on his part considering what awaited him in cross-examination. Instead, Cosmas Musumali, a man who in medieval Greece would pass for a eunuch had to bear the brunt of cross-examinationcross-examination alone.
In her meticulous judgment which Fred M’membe and the Socialist Party general secretary decided not to appeal, the judge accepted the evidence herebelow and made her findings accordingly:
1. “The 1st Defendant in his defence stated that members of the Socialist Party, who included the Plaintiffs, have been attending the MST workshops in Brazil since 2015, where LGBT, rights are promoted. To substantiate this allegation, the 1st Defendant called DW1 as his witness, who testified that he went on the MST education course in Brazil in 2016, at the facilitation of the Socialist Party.’’
2. “This witness (DW1) told the Court that he only stayed in Brazil for three (3) weeks out of the twelve (12) weeks duration of the course. He explained the reason for this as being, there they were being taught that socialism means being atheist, and accepting homosexuality.’’
3. “DW1 in his testimony stated that a South African national (name withheld), had complained to the lecturer when two men who sat at the front of the class were kissing and cuddling, and the lecturer had told him that as a socialist one needed to embrace and accept that.’’
4. (The second witness) “PW2 in cross-examination a conceded that one of the objectives of the MST course is to promote LGBT rights through workshops. The 2nd Plaintiff in his testimony agreed that he is associated with MST as a lecturer.’’
5. “The evidence regarding the MST, with which the 2nd Plaintiff has been associated as a lecturer, and which college workshops have been attended by the 1st Plaintiff (M’membe), PW2, PW3, PW4, and DW1 among others who have been associated with the Plaintiffs and for some with the Socialist Party, promotes LGBT rights.’’
6. “It is also on record that the 2nd Plaintiff testified that as a cross-examinationmember who is in charge of membership of the Socialist Party, he would allow a person that states that he is homosexual, to join the party.’’
7. “The testimony given by DW1 which was not challenged in cross-examination, was that at the MST, they are taught that persons of different sexual orientation should be accepted, as part of Socialism.’’
8. “The evidence given by the 2nd Plaintiff shows that the Socialist Party tolerates persons of different sexual orientation, and this is what the 1st Defendant in the interview on Millennium Radio said.’’
9. “The evidence as a whole establishes that the 2nd Plaintiff is associated with the MST in Brazil, as a lecturer, which advances the rights of the LGBT community, and which the 1st Plaintiff has attended alongside some of the witnesses who testified in this matter. As testified by DW1, the MST in its teachings advocates for the acceptance of LGBT persons and, therefore, the Socialist Party with the 2nd Plaintiff as its General Secretary is tolerant towards persons of different sexual orientation, including homosexuals and lesbians. The 2nd Plaintiff confirmed this in his testimony.’’
10. “The record also shows that the MST teaches people to embrace and accept LGBT persons. Travel to Brazil to learn about socialism facilitated by MST establishes that the Socialist Party agrees with the objectives of the MST, which include advancing LGBT rights.’’
11. “In Zambia, there is no recognition of LGBT rights, and any acts associated with such are criminalised. Therefore, any person advocating such rights is breaking the law, and any political leader aspiring to lead the country who advocates for the same may not be said to be honest and of integrity, and consequently fit to lead the nation.’’
12. “The rest of the articles named in the statement of claim as being defamatory, were also made in relation to the assertions and comments made by the 1st Defendant during the radio interview, with the comments having been found to be fair comment. The articles have not in any way been established to have quoted anything untrue. Thus, they are equally fair comment.’’
13. “The claim for damages for defamation of character accordingly fails, with costs to the defendants, to be taxed in default of agreement. Leave to appeal is granted.’’