This article was published on June 18, 2014 at indexoncensorship.org
(Photo illustration: Shutterstock)
By Paul Carlucci for Think Africa Press, an online magazine that offers commentary and in-depth analysis from leading African and international thinkers.
Lusaka, Zambia: A little over two years ago, when Michael Sata was campaigning for Zambia’s top office, he promised that, if elected, he would finally bring to an end a decade of abandoned legal reform and deliver the country a definitive new constitution. Not only that, but he would do it within 90 days of taking power.
Sata’s election campaign was successful, and soon after taking office in September 2011, the new president − along with his Patriotic Front (PF) government − tasked a committee of lawyers and academics with drafting the document.
Things soon slowed down however, and it is only now − several shrugged-off deadlines later − that Zambia seems to be nearing the completion of its constitutional process. Though that’s not to say things are necessarily moving smoothly. In December 2013, the government blocked the constitutional committee from releasing its final draft to the public, insisting it be sent to the government alone, while allegations have emerged that Sata has changed his mind about Zambia’s need for a new constitution, believing instead that the existing one can simply be amended.
The government has rejected these claims, asserting that Sata’s commitment to a new constitution remains “unshakeable”, and his two-year-old promise continues to loom large in the psyche of an increasingly outraged brigade of critics. After the 2014 budget revealed a skew of alarming numbers and the global rating agency Fitch downgraded the country’s credit rating, the PF’s economic success story lost its celebrated momentum, leaving it with little more than a narrative of heavy-handed autocracy.
Many of the government’s opponents have closed in on the constitution as a panacea for all that ails the country, a movement that culminated in a major demonstration at the Cathedral of the Holy Cross in Lusaka and which took a sensational twist on 15 January when the outspoken Zambian Watchdog published what it claims is a leak of the final draft.
A torrent of official statements followed as the drafting committee denied originating the leak, the police vowed to clamp down on what they termed a ‘cybercrime’, and the government vowed to track down and punish the perpetrators of the leak. The cabinet, which is meant to be deliberating the final draft, also claimed it hasn’t yet received its copies of the document.
While the authenticity of the leaked constitution is uncertain, it doesn’t stray far from the publicly available first draft, or even from previous drafts commissioned under past administrations. Zambia’s electoral system is addressed, requiring candidates to garner over 50% of the vote to hold presidential office, while parliament would be composed of members elected through a combination of first-past-the-post and proportional representation.
The draft Bill of Rights − which includes classical first generation rights as well as social, economic and cultural rights − is also more clearly articulated than it is in the existing constitution, and it seems to be these protections, more than technical changes to governance structure, that the opposition is longing for. They complain that their protests have been menaced by police and ruling party thugs, that critical media outlets have been persecuted by the government, and that the general population, especially outside the capital Lusaka, slogs through a life of poverty, illiteracy and environmental degradation.
Indeed, tackling these problems is crucial, but here’s the rub: there’s more than enough substance in the existing constitution to transform human rights in the country. That’s not the issue. The real problem is that successive administrations, including those headed by members of the now opposition Movement for Multiparty Democracy (MMD), simply cast off their legal responsibilities when it suits them. What needs to be tackled is Zambia’s tradition of impunity, which dates all the way back to the era of its independence president, Kenneth Kaunda.
When Zambia was granted independence in 1964, it started its new life with a multiparty framework, led by Kaunda’s United National Independence Party (UNIP), which had won 55 of 75 seats in the pre-independence elections. But this wasn’t to last. In 1972, keen outmanoeuvre political opponents both inside and outside the ruling party, Kaunda banned all political parties apart from UNIP. In 1973, he formalised one-party rule in a new constitution that also that consolidated state power in the president’s office.
It was only 18 years later when Zambia was choked by debt and was facing mounting pressure from the international community that Kaunda commissioned a hasty legal review. That move led to the establishment of the 1991 constitution and multiparty elections that brought MMD leader Fredrick Chiluba to power.
Not a lot has changed since then, despite the reform commissions that have been mandated, the reports that have been produced, and the many amendments proposed. One amendment that has been passed was a provision barring candidates with foreign parentage from running for the presidency. Chiluba, assisted by Sata, who was then a member of the MMD, managed to force through this provision in 1996, effectively blocking Kaunda, whose father was born in neighbouring Malawi, from returning. The amendment still exists today, but the kinds of reforms that would hold leaders more closely to account have remained elusive.
However, in many ways, the existing constitution does a lot of things right. It contains all the baseline requisites such as human dignity, equality before the law, protection from inhuman treatment, freedom from slavery, and freedoms of religion and expression. It also explicitly protects young people from various forms of exploitation. And under the Directive Principles of State Policy section, its clauses address employment, shelter, disability, and education. It does use some derogatory language, but so too do the current drafts of the new constitution.
The problem is that despite these legal mandates, correctional facilities are overcrowded and access to justice fails many prisoners in remand; there’s a long track record of beating, arresting, and criminally charging journalists, civil society leaders, and political figures who criticise government; poverty is endemic in rural areas, where education and healthcare facilities are also inadequate and the means of pursuing a gainful livelihood are largely absent.
When it comes to social and economic rights, many developing countries explain their failures in terms of cost. How can a poor nation like Zambia be expected to improve the lot of its direly undeveloped rural areas? How can it extend its meagre health and educational resources that far? How can it afford what human rights theorists call ‘positive rights’, those measures that require government action to protect and maintain?
Part of the answer is to dam the ever-bubbling backwaters of corruption, which divert enormous sums from the country’s development agenda. While corruption charges and trials do occur – usually motivated by political reasons – leaders from Chiluba to Sata have done little to substantively affect the diversion of public money from development to private bank accounts, while Chiluba in particular oversaw the country’s most notorious chapter of embezzlement.
In the short term, real change won’t emerge from the government’s legal apparatus. It will have to come from outside. Protesting Zambians have chalked up victories before, as when public demonstrations played a role in dissuading Chiluba from seeking an unconstitutional third term. And if NGOs, beleaguered though they are by looming registration reforms, were to focus their efforts on mobilising not just urban Zambians, but also those people living in undeveloped areas, more tangible results could be achieved.
But it’s not just a case of focusing their efforts. It’s a case of refocusing them. The fight for a new and improved constitution is certainly a worthy one, but civil society organisations have made a holy grail of constitutional reform, as if delivery will automatically slacken the state’s grip on an array of levers it freely abuses, from stacking the judiciary with supporters to deploying waves of violent thugs in by-election campaigns.
The current opposition, meanwhile, is only too pleased to ally itself with activists, but given the MMD’s own history of unjust governance, the teaming up is clearly for self-serving reasons. Rather than giving politicians such an elevated podium from which to reinvent themselves, civil society would do better to zero in on specific rights violations and protest those on the same scale as they do constitutional reform.
The other piece of this puzzle is the international community. That’s a difficult prescription for a continent whose leaders routinely play their populations against what they frame as foreign interference, but sustained pressure from multilateral organisations able to reference even the current set of constitutional guarantees would help consolidate demands made in the streets.
None of this is to say that robust laws can’t lay the groundwork for a future of mature, responsive governance. A strong legal framework, no matter its current irrelevance, will make for useful terms of reference in a more developed future, and human rights theorists habitually point to ambitious laws as key components to equitable progress. Indeed, what is a pie in the sky today could very well become steak on the plate tomorrow. The point is that it will take more than a good-looking tablecloth to make that happen.
Paul Carlucci is a Canadian writer and journalist based in Lusaka, Zambia. He has reported from Ghana and Ivory Coast for Think Africa Press, IPS Africa, Al Jazeera English, the Toronto Star, and the Toronto Standard. His collection of short stories ‘The Secret Life of Fission’ is available through Oberon Press. Follow him on twitter @PaulCarlucci.
In the week that super-injunctions broke new legal ground, John Kampfner attacks a growing threat to press freedom
This article was first published in The Independent
Just when you think you are over the worst, the forces of secrecy bite back. No sooner had the Government published a draft Defamation Bill, going some way to reversing many of the most hideous aspects of Britain’s libel laws, than the judiciary set a dangerous new precedent.
The recent decision by Mr Justice Tugendhat to grant anonymity to a claimant in a libel case is believed to be the first of its kind. The case, the details of which the media are not allowed to report, concerns a wealthy financier, a multimillion-pound family trust, and lurid allegations online.
I have no interest in the tangled web of people involved; nor, I suggest, do most readers. The trouble is that many legal disputes involve dark and often nefarious acts, which individuals might seek to prevent being exposed. Their interests, naturally, should be taken into account, but these should not override other considerations.
The only true justice is open justice, yet increasingly judges in the UK see the right to secrecy as paramount. Super-injunctions and other gagging orders are being handed out with alarming frequency. These forbid not just the revealing of information, but the revealing of the very injunction preventing the release of that information.
Currently one super-injunction prevents the media from calling someone a banker. I can, by law, say no more than that. Super-injunctions have been used by footballers “playing away” with team-mates’ girlfriends, and by companies who believe their reputations could be damaged by newspapers having the temerity to expose their polluting practices. The most outrageous such case involved the oil trading firm Trafigura. In 2009, Carter Ruck, the solicitors’ firm, warned that a newspaper would be in contempt of court if it published a parliamentary question about the company dumping toxic waste in Ivory Coast. This led to a frenetic meeting in the House of Commons which my organisation, Index on Censorship, convened with MPs furious at the attempt to ride roughshod over the longstanding right to parliamentary privilege.
The conclusion drawn then applies equally now: the rich and powerful will do whatever it takes, aided by certain legal firms, to chill legitimate journalistic and public inquiry. Soon we may see public figures taking out super-injunctions or other requests for privacy to prevent the disclosing of their financial affairs. We would not just be denied the right to know about the detail; we wouldn’t know that the cases even exist.
When we asked the Ministryof Justice how many super-injunctions were in place, we were astonished to be told that they had no idea. They apparently hadnever counted them. In one respect that was understandable. It is not easy to count something that,officially, does not exist.
Unofficial estimates put the number of super-injunctions issued over the last 18 months at around 20. Most of them relate to sex and most of them relate to footballers. Some of these gags fail, most famously in the case of John Terry, who was relieved of the England captaincy as a result of newspaper allegations about an extramarital affair.
A special committee, chaired by the Master of the Rolls, Lord Neuberger, has been looking at the use of super-injunctions. Its findings, due to be published just before Easter, are awaited with interest.
Super-injunctions and other anonymity devices are doing incalculable damage not just to free expression but to the credibility of the legal system.
There are perfectly sound reasons for conventional injunctions to be served – safeguarding evidence deemed unreliable and protecting individuals from blackmail are just two. Perhaps in one or two of the most extreme cases, such as where a vulnerable adult or a child might be imperilled through secondary identification, a super-injunction could be justified. But not otherwise.
There is an important broader debate to be had about privacy. Currently, courts are applying article 8 of the European Convention on Human Rights, which guarantees privacy, with greater determination than they are applying to article 10, which enshrines the right to free expression.
Is everyone entitled to privacy, come what may? Should exceptions be made for public figures whose private actions contradict their public pronouncements, or for public figures who seek commercial gain from one kind of private life, only to lead a different one behind the scenes? Is everyone in public life fair game? These are all valid questions, but even the most stringent interpretation of the right to privacy surely does not require the legal process to be conducted in secret.
For years the English courts indulged the wealthy around the world to come to London to sue charities, scientists, doctors and others for libel. The law was skewed against openness, accountability and legitimate investigation. Thanks in large part to our work on the Libel Reform Campaign, the Government was persuaded to rebalance the law. Just as responsible campaigners do not seek to abolish libel or create a free-for-all for scurrilous and malicious accusations, so they do not deny the fundamental right to privacy. That has to be balanced, however, against the needs of a society to an open justice system. Super-injunctions are but the latest tool to chill free speech.
John Kampfner is chief executive of Index on Censorship twitter@johnkampfner
The cases
1. A leading sportsman won a gagging order after learning that ‘The Sun’ was planning to publish a story that he had been cheating on his partner with two other women. Lord Neuberger said the sportsman’s private life could be “unlawfully exposed”.
2. A married television broadcaster won a court order in 2008 to prevent public discussion of an affair which he believed had led to the birth of a child. The injunction remains although he has received confirmation that he is not the father.
3. A married public figure won a gagging order to hush up his infidelity after claiming it would be “very distressing” for his family . A judge agreed it would breach his human rights after hearing that the woman was demanding substantial sums of “hush money”.
4. A married football manager gained an injunction banning a cuckolded husband from revealing details of his alleged affair with the man’s wife. The manager argued for privacy because he was trying to rebuild his life.
5. A high-profile television presenter secured an injunction stopping his ex-wife writing about their relationship and claims that they had resumed a sexual affair after he remarried. Neither the star nor his ex-wife can be identified.
6. A high-earning footballer won an injunction preventing the reporting of claims of a “sexual liaison, encounter or relationship” with an international female sports star. The injunction banned publication of “private or personal photographs” on mobile phones.
7. A prominent footballer playing in England won an injunction preventing coverage of an alleged blackmail attempt over sex with three women at a hotel, supposedly recorded on a mobile phone.
8. A world famous sportsman – who was not, on this occasion, a Premier League footballer – and who is married, obtained a gagging order preventing the publication of any suggestions
[vc_row full_width=”stretch_row_content_no_spaces” full_height=”yes” css_animation=”fadeIn” css=”.vc_custom_1556717524900{background-image: url(https://www.indexoncensorship.org/wp-content/uploads/2010/03/awards-2010-1460×490.jpg?id=81563) !important;background-position: center !important;background-repeat: no-repeat !important;background-size: cover !important;}”][vc_column][/vc_column][/vc_row][vc_row][vc_column width=”1/2″][vc_custom_heading text=”FREEDOM OF EXPRESSION AWARDS 2010″ use_theme_fonts=”yes”][vc_column_text]Index on Censorship’s Freedom of Expression Awards exist to celebrate individuals or groups who have had a significant impact fighting censorship anywhere in the world.
[/vc_column_text][/vc_column][vc_column width=”1/2″][vc_single_image image=”81571″ img_size=”full”][/vc_column][/vc_row][vc_row][vc_column width=”1/3″][staff name=”Twitter” title=”New Media Award” profile_image=”81581″]Twitter is a free social networking and micro-blogging service that enables users to send and read messages with a 140-character limit. Twitter was thrust to the fore of international politics during the contested 2009 Iranian elections. During the huge protests that followed, the site played a pivotal role in mobilising protesters and facilitated a direct line of communication between demonstrators, news outlets and engaged people around the world. Maintaining its service in the face of a totalitarian regime, Twitter demonstrated how social networking can have a direct impact on the world stage. It was also used as a powerful tool in protecting free expression in the UK when solicitors Carter-Ruck, acting on behalf of Trafigura, the multinational oil company, tried to prevent the press from publishing details of a parliamentary question about a report into the alleged dumping of toxic waste in the Ivory Coast. Within hours, “#trafigura” and “#carterruck” were the site’s most popular topics.[/staff][/vc_column][vc_column width=”1/3″][staff name=”Rashid Hajili” title=”Bindmans Law and Campaigning Award” profile_image=”81577″]Rashid Hajili is the chair of the Media Rights Institute in Azerbaijan, which monitors free expression and works for the protection of journalists and bloggers. In a country with an ever worsening record on press freedom, Hajili is one of a small group of individuals who defends the rights of journalists and advocates for greater access to information. He has defended a number of prominent journalists, including imprisoned editor Eynulla Fatullayev. A leading voice in the campaign for media law reform in the country, Hajili is a prolific writer and tireless campaigner who has drafted legislation on protection of sources and broadcasting freedom. In December 2009, he worked with the organisation Article 19 on a case in the European Court of Human Rights to decriminalise defamation. “A country where freedom of speech is suppressed cannot have a positive image in the international community,” says Hajili. “Lack of tolerance to criticism means that democratic principles and values do not function in this country.”[/staff][/vc_column][vc_column width=”1/3″][staff name=”Radio La Voz” title=”Guardian Journalism Award” profile_image=”9072″]Operating in Bagua Grande in the Utcubamba Region of Peru, Radio La Voz was founded in 2007 by respected broadcast journalist Carlos Flores Borja and his sons. The station’s aim is to broadcast cultural programmes and information about environmental protection and human rights, fight political corruption and support local communities. Radio La Voz lost its licence in 2009 after the government accused the station of “supporting violence against security forces” when deadly clashes shook the area. Thirty-four people were killed as Amazonian communities protested about the opening up of huge tracts of land to foreign investment. To date no government representative has offered any evidence to support the veracity of its allegation against the radio station. Flores Borja says that La Voz was only doing its duty as an independent media source. He claims “the government took advantage of the moment to silence a voice critical of its policies”. On 16 February 2010, the case against Radio La Voz was dropped.[/staff][/vc_column][/vc_row][vc_row][vc_column width=”1/3″][staff name=”Andalus Press” title=”Sage International Publishing Award” profile_image=”81574″]Founded in 2000, Andalus is a unique Israeli publishing house dedicated to the translation of Arabic literature and prose into Hebrew. The name reflects nostalgia for the period in Andalusia between the 8th and 15th centuries when Jewish and Arab cultures co-existed. Publisher and founder Yael Lerer hopes to reverse the decline of Hebrew-speaking Israelis reading Arab literature and promote a greater understanding of the region’s Arabic cultural heritage in Israeli society. Andalus publishes literature from Lebanon, Syria, Sudan and Algeria – countries it is nearly impossible for ordinary Israelis to visit – as well as Palestinian writers and poets. Andalus’s translations have appeared in Israeli schools and universities and have also encouraged other publishing houses to re-examine Arabic literature and scholarship.[/staff][/vc_column][vc_column width=”1/3″][staff name=”Mahsa Vahdat and Ferhat Tunç” title=”The Freemuse Award for Music” profile_image=”106574″]Iran has a vibrant underground music scene that explodes tired clichés about Iranian society, and Mahsa Vahdat is a fabulous example of this sub-culture. Vahdat resists the pressures placed on female musicians by conservative sectors of Iranian society. In 2009, she recorded an album with American Mighty Sam McClain called Scent of Reunion – Love songs across civilizations. She was also featured in the powerful film about underground music in Tehran called No One Knows About The Persian Cats. She has shown courage and bold resistance in continuing to follow her artistic ambitions despite obstacles.
For almost three decades Turkish musician Ferhat Tunç has insisted on exercising his right to perform his music, ignoring several court cases and other threats against him in recent years. He has continued to sing in the minority language Zaza (Dimli) and in Kurmanci (Kurdish), as well as in Turkish. He has firmly refused to succumb to any form of intimidation, without expressing any hatred against its perpetrators. Through his brave stand against censorship, Ferhat has actively propagated the strengthening of human rights and democracy in Turkey.[/staff][/vc_column][vc_column width=”1/3″][staff name=”Heather Brooke” title=”Special Commendation” profile_image=”81575″]Without journalist Heather Brooke’s tireless campaign to uncover details of MPs’ expenses, we might never have discovered the details of MPs’ duck houses, moats and trouser presses. Her dogged five-year freedom of information battle was later made into a film by BBC4. In 2008, Brooke won a High Court case against the House of Commons authorities, which forced them to release full details of MPs’ second home allowances. The court said: “We have no doubt that the public interest is at stake. We are not here dealing with idle gossip, or public curiosity about what in truth are trivialities. The expenditure of public money through the payment of MPs’ salaries and allowances is a matter of direct and reasonable interest to taxpayers.” Brooke is the author of The Silent State and Your Right to Know, a citizens’ guide to using the Freedom of Information Act. She is a consultant and presenter on Channel 4 Dispatches documentaries and an honorary professor at City University’s Department of Journalism.[/staff][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”JUDGING” font_container=”tag:h2|text_align:center” use_theme_fonts=”yes”][vc_column_text]
Criteria – Anyone involved in tackling free expression threats – either through journalism, campaigning, the arts or using digital techniques – is eligible for nomination. Any individual, group or NGO can nominate or self-nominate. There is no cost to apply.
Judges look for courage, creativity and resilience. We shortlist on the basis of those who are deemed to be making the greatest impact in tackling censorship in their chosen area, with a particular focus on topics that are little covered or tackled by others. Nominees must have had a recognisable impact in the past 12 months.
Where a judge comes from a nominee’s country, or where there is any other potential conflict of interest, the judge will abstain from voting in that category.
Panel – Each year Index recruits an independent panel of judges – leading world voices with diverse expertise across campaigning, journalism, the arts and human rights.
The judges for 2010 were:
[/vc_column_text][vc_row_inner][vc_column_inner width=”1/3″][staff name=”Shaheed Fatima” title=”Barrister” profile_image=”81569″]Shaheed Fatima is a barrister whose work encompasses a wide range of human rights work, advising and acting for governments, NGOs and individuals on constitutional and human rights issues. Fatima won the Liberty/Justice Human Rights Lawyer of the Year Award in 2007 and has been ranked in both Chambers & Partners 2010 and Legal 500 2009. She has appeared in many cases, including recently at the European Court of Human Rights in a key case regarding the applicability of Articles 2 and 3 of the European Convention on Human Rights to killings by British soldiers in post-war Iraq.[/staff][/vc_column_inner][vc_column_inner width=”1/3″][staff name=”Emily Bell” title=”Director of Digital Content, Guardian News and Media” profile_image=”81567″]Emily Bell has worked for the Observer and the Guardian for the past 18 years, setting up mediaguardian.co.uk in 2000 and becoming editor-in-chief of Guardian Unlimited in 2001. In September 2006, Bell was promoted to the new position of director of digital content for Guardian News and Media. Guardian.co.uk, the Guardian and Observer’s network of websites, has won many awards, including the prestigious Webby for Best Newspaper on the web in 2005, 2006, 2007 and 2009. Bell writes a regular column for Media Guardian on media policy issues.[/staff][/vc_column_inner][vc_column_inner width=”1/3″][staff name=”Lemn Sissay” title=”Poet” profile_image=”81568″]Lemn Sissay is artist-in-residence at Southbank Centre and is an Artsadmin artist. Sissay is the author of five poetry collections and a number of stage plays. The Independent on Sunday described his poetry as “the songs of the street, declamatory, imaginative, hard-hitting”. Sissay is a patron of The Letterbox Club, an initiative to get books to children in social services care. He writes and presents radio documentaries and is a regular contributor to Radio 4’s Saturday Live. His short film What If was recently exhibited at the Royal Academy as part of its GSK Contemporary season.[/staff][/vc_column_inner][/vc_row_inner][vc_row_inner][vc_column_inner width=”1/3″][staff name=”Caroline Michel” title=”Chief Executive, PFD” profile_image=”81566″]Caroline Michel is Chief Executive of PFD, according to the Guardian “the most talked-about” literary agency. She joined PFD in 2007 – having previously worked at the rival William Morris Agency – with the aim of transforming PFD into a multi-faceted, talent-seeking agency spanning multimedia, books and television. In total, Michel has over 25 years’ experience in publishing, having run the Vintage imprint at Random House and Harper Press at HarperCollins. She is also a governor of the British Film Institute and a board member of English PEN.[/staff][/vc_column_inner][vc_column_inner width=”1/3″][staff name=”Lindsey Hilsum” title=”Journalist, Channel 4 News” profile_image=”80223″]Lindsey Hilsum is international editor for Channel 4 News. She won the 2005 Royal Television Society (RTS) Journalist of the Year award for her reporting from Fallujah and Beslan. In 2003 she won the RTS Specialist Journalist of the Year award for her reports from the Palestinian refugee camp Jenin. During the 2003 Iraq war, she spent 10 weeks in Baghdad, and was in Belgrade during the NATO Kosovo campaign. She has spent extended periods in Zimbabwe and the Middle East, and headed C4N’s Beijing bureau from 2006 to 2008, covering the Tibetan uprising, the Sichuan earthquake and the Olympics.[/staff][/vc_column_inner][vc_column_inner width=”1/3″][/vc_column_inner][/vc_row_inner][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2010 GALA” font_container=”tag:h2|text_align:center” use_theme_fonts=”yes”][vc_media_grid element_width=”3″ grid_id=”vc_gid:1556717940555-e12333e1-b318-1″ include=”81628,81627,81626,81625,81624,81623,81622,81621,81620,81619,81618,81617,81616,81615,81614,81613,81612,81611,81610,81609,81608,81607,81606,81605,81604,81603,81602,81601,81600,81599,81598,81597,81596,81595,81594,81593,81592,81591,81590,81589,81588,81587,81586,81585,81584,81577,81576,81575,81574,81571″][/vc_column][/vc_row]