INTRODUCTION

The aim of this essay is to discuss how the power of Parliament to summon people for a hearing
resonates with the right to freedom of speech. In order to achieve this aim, this essay will begin
by defining key terms. Thereafter, this essay will discuss the right to freedom of speech and the
power of Parliament to summon people for a hearing. Having done the foregoing, this essay will
draw to a conclusion.

DEFINITION SECTION

A. Human Rights

Human rights are defined as innate, universal and unalienable benefits and entitlements that
accrue to a person by virtue of them being human. 1 From this definition, it is clear that human
rights accrue to all humans because merely because thy are human. Therefore, human rights are a
standard of life that humans out to have because they are human.

In addition, the definition also uses the words universal and unalienable. Universality means that
the rights exist in every part o the word as long as there are humans there. Human rights apply to
every human being, in equal measure, across the world.2

Unalienable means that human rights cannot be separated from a human being. 3 So long as the
party in question is a human being, they are entitled to human rights. Furthermore, these rights to
humans regardless of where they travel to. Just because a person moves to another country does
not mean they rights they enjoyed in their previous country have been stripped.4

Lastly, human rights were made an issue of international focus after the second world war. 5
Having witnessed the horrors of the war such as the Holocaust, the international community
decided to come up with a set of rights that every human being deserves to have by virtue of
being human. Human rights also uphold the dignity of human life.6
1
Alfred Chanda (2013) Constitutional Law in Zambia: Cases and Materials. Lusaka: UNZA Press.
2
Gilson Martins (2012) Introduction to Constitutional Law. London: Macmillian Publishers.
3
Garvin Raya (2010) Constitutional Law. Oxford University: Oxford Press
4
Gilson Martins (2012) Introduction to Constitutional Law. London: Macmillian Publishers.
5
Alfred Chanda (2013) Constitutional Law in Zambia: Cases and Materials. Lusaka: UNZA Press.
6
Garvin Raya (2010) Constitutional Law. Oxford University: Oxford Press
THE RIGHT TO FREEDOM OF SPEECH

The Zambian constitution guarantees every citizen the right to freedom of speech.7 Article 20 of
the Zambian Constitution 8 guarantees the Zambian citizens ad residents the right to freedom of
expression. This right grants Zambian citizens and residents the freedom to express themselves
with out fear of prosecution or censorship.9

Generally, the right to freedom of expression allows the citizenry to express their beliefs,
opinions and generally concerns on matters that affect them. Because of his right, churches,
political parties and news media exists. Infacts, because o this right, democracy exists. 10 Alfred
Chanda11 argues that the freedom of expression is the life blood of democracy. There cannot be
democracy if people are not allowed to express their views and beliefs. Tyrants and dictators rule
by fear and by taking away their people’s freedom of expression. In the case of Fred Membe v
Miyanda (suing as MMD Secretary General) 12 the Appellant was sued by MMD which was at
the time the ruling party in Zambia for defamation. The Court in this case held that Mr Membe
through his newspaper, The Post, only expressed his views on a political matter. The Court went
on to state that political matters are national matters and every citizen has the right to make a
comment because these matters affect them. The Court held in favour of the Appellant under he
grounds of fair comment.

DEROGATION CLAUSE AND TH POWER OF PARLIAMENT TO SUMMON

However, it is imperative to note that although the right to freedom of expression is guaranteed
by the Zambian constitution, the right is not absolute. As a matter of fact, in Zambia, apart from
the right to life13 and the right to freedom from torture and slavery14, all rights guaranteed on the
bill of rights are not absolute.

7
See Article 20 of the Constitution of Zambia, chapter 1 of the laws of Zambia
8
1996 constitution (Bill of Rights)
9
Alfred Chanda (2013) Constitutional Law in Zambia: Cases and Materials. Lusaka: UNZA Press.
10
Alfred Chanda (2013) Constitutional Law in Zambia: Cases and Materials. Lusaka: UNZA Press.
11
Alfred Chanda (2013) Constitutional Law in Zambia: Cases and Materials. Lusaka: UNZA Press.
12
(2006) ZR 53
13
Article 11 of the Constitution
14
Article 12 of the constitution
What this means is that according to the Zambian constitution, human rights can be derogated in
certain circumstances. In other words, there are certain circumstances in which the law can strip
o limit someone’s rights to freedom of expression. 15 This is caused the derogation clause. This
clause allows governments to temporarily suspend certain rights, such as freedom of assembly,
in times of emergency or crisis, in order to protect public safety. This clause is an important tool
for governments to ensure the safety of their citizens and to maintain order in times of upheaval.
It is also a necessary safeguard to ensure that human rights are not abused in times of crisis. It is
essential that governments have the ability to suspend certain rights in order to protect the public,
and the Derogation Clause is an important part of this process.

This means that just because the right to freedom of expression is guaranteed, this does not mean
that people in Zambia can express anything they desire without limits or boundaries. The
constitution clearly outlines circumstances in which this right can be derogated or limited.

The first instance is public morals.16 According to Article 20 of the Constitution, where one’s
freedom of expression is a threat to the morals of the general public, that person’s freedom of
expression will be taken away or limited. This means that in Zambia, although people have the
right to freedom of expression, people are not allowed to express beliefs or opinions that are a
threat to public morals.

The second instance is public safety17. According to Article 20 of the Zambian constitution, the
right to freedom of expression is derogated if the views being expressed are likely to pose a
threat to the safety of the Zambian public. Where one’s views or beliefs are likely to incite riots
or violent attacks on members o he public, then, such a person’s freedom of expression will be
limited or taken away in such an instance. A practical example of this ground of derogation can
be seen in section 114 of the Penal Code18, which criminalizes inciting riots. The Penal Code also
criminalizes seditious remarks19.

15
See Article 20 of the Zambian Constitution (1996)
16
Gilson Martins (2012) Introduction to Constitutional Law. London: Macmillian Publishers.
17
Gilson Martins (2012) Introduction to Constitutional Law. London: Macmillian Publishers.
18
Chapter 87 of the Laws of Zambia
19
See section 271 of he Penal Code
Lastly, for the purposes of his essay, the right to freedom of expression is derogated in instances
where the law creates immunity or privilege on a particular topic. 20 When the law expressly
provides that a certain topic is a privileged matter and not subject to public scrutiny, then
members are not to express their view, especially if they are negative. One such example of this
is members of Parliament’s privilege and dealings. The functions and privileges of members of
Parliament are protected by law and therefore any attempt to make scathing remarks about the
aforementioned can result in being summoned for a hearing. An authority on the foregoing is the
case of Fred Membe v The National Assembly 21. In this case Mr Membe wrote a scathing article
about members of Parliament and their privileges in his newspaper The Post. As editor in chief,
he was held accountable and this summoned by Parliament for a hearing. In this case, Parliament
tried to sentence him to 15 years for his remarks but the Court overturned this decision because
the power to adjudicate and sentence people is vested in the judiciary and thus Parliament acted
ultra viresly and was in breach of the principle of separation of powers.

Parliament’s power to summon people for a hearing is granted by The National Assembly
(Powers and Privileges)22. This act provides for the privileges and powers of members of
Parliament. For example. Section 8 of the Act provides that members of Parliament are immune
from arrest and legal suits whilst in office. In addition, where a civilian defames these privileges
and powers of Parliament is liable to summoned by the national assembly for a hearing.

This has been an issue of debate amongst Many constitutional law scholars who argue that it is
unconstitutional for the law to allow the national assembly to be immune from the right to
freedom of expression. This is because the public must be able to express their views on matters
that affect them. Considering that it is the public that votes for members of Parliament, it follows
therefore that the public should be able to speak on matters their representatives are upto.

Nevertheless, just because the law is somewhat unfair to this end, this situation is still legal as it
is provided fo by the constitution which was legally enacted. This therefore means that when it
comes to parliamentary privileges and powers the Zambia government has the legal authority to
suspend the right to freedom of speech and expression.

20
See Article 20 of the Zambian Constitution (1996)
21
(2007) ZR 58
22
Chapter 12 of the Laws of Zambia
CONCLUSION

Article 20 of the Zambian constitution guarantees freedom of expression. This means that people
in Zambia have the right to express their views, beliefs and opinions with fear of censorship or
arrest. However, this right is not absolute. The constitution provides a derogation clause which
allows the government to suspend the right to freedom of expression. One instance in which the
government can suspend this right is when it comes to parliamentary powers and privileges.

REFERENCES

STATUTES

The Constitution of Zambia Chapter 1 of the Laws of Zambia.

The Constitution of Zambia (amendment) Act No.2 of 2016

The Penal Code Chapter 87 of the Laws of Zambia

CASES

Fred Membe v Miyanda (suing as Secretary General for MMD)

Fred Membe v The National Assembly

BOOKS

Alfred Chanda (2013) Constitutional Law in Zambia: Cases and Materials. Lusaka:
UNZA Press.

Garvin Raya (2010) Constitutional Law. Oxford University: Oxford Press.

Gilson Martins (2012) Introduction to Constitutional Law. London: Macmillian

Publishers.

Julian Sancet (2011) Political Science and Governance. New York: Longman
Publishers.