ZAMBIA OPEN UNIVERSITY

SCHOO OF LAW

2018 SECOND SEMESTER

NAME: ZULU KONZANI JOSEPH

COMPUTER No.: 21810738

PROGRAMME: BACHELOR OF LAW (LLB)

COURSE CODE: LL6

COURSE TITLE: CRIMINAL LAW II

CONTACT LECTURER: Dr. MWANSA

ACADEMIC YEAR: 1st YEAR

SEMESTER: 2 (TWO)

ASSIGNMENT No.: 2

DUE DATE: 15th OCTOBER 2018

POSTAL ADDRESS: ELIM SCHOOL

P.O BOX 22667,

KITWE

Email ADDRESS: jotisa2006@yahoo.com

Mobile phone: 0961705234

QUESTION:

“The offence of sedition is necessarily of current political altitudes, beliefs and values.”

With decided cases, discuss the statement above.

Introduction

The statement “The offence of Sedition is necessarily a reflection of current political attitudes,
beliefs and values,” indicates that the majority of cases against individuals charged and convicted
under the sedition legislation have often drawn in political consideration.1 Politics will always
have an effect on the promotion and execution of the offence of sedition, due to the fact that the
aim of this offence is to avoid the formulation of ill opinions of the government, eliminating
truth as a defence, perceiving true speech as worse than speculative ones on account that it has
potential to produce more harm to the reputation and appearance of government.2 It is still
prevalent, today, that governments have used the offense of sedition, to curb free speech and
punish political rivals. Unfortunately, this law, has survived in Zambia, and continues, to haunt
media personnel, human rights activists, political dissenters and public intellectuals, across the
country. Stephen, writing in 1883, confirmed this, when he remarked: “That the practical
enforcement of this doctrine (sedition) was wholly inconsistent with any serious public
discussion of political affairs is obvious, and so long as it was recognized as the law of the land
all such discussion of political affairs is obvious, and so long as it was recognized as the law of
the land all such discussion existed only on sufferance.” 3 So as long as the sedition offence
remains, governments will inevitably be tempted to use them improperly, especially when highly
unpopular opinion is expressed, hence unjustified interference with freedom of expression. For
instance, the US sedition Act of 1798 also imposed harsh restriction on speech. The Act was
blatantly political, designed to silence the opposition press critical to government policy

Legal definition of sedition

Summary form, sedition is simply the crime of inciting insurrection against the state; it is an
overt conduct such as speech and organisation that tends toward insurrection against the
established order. It often includes subversion of the constitution and incitement of discontent
towards or resistance against established authority. 4

1
The People v Mwape(2000) HC 234.
2
Chemerinsky, E. (2001). Constitutional Law. Pg 896, London: Aspen Law & Business
3
Stephen, F. J. (1883). A History of the Criminal Law of England. (II), pp 299. London: OUP
4
https://en.wikipedia.org/wiki/sedition. Retrieved on the 16th October 2018.
In English common Law, sedition was defined by intention, which, James Stephen states, “a
seditious intention is an intention to bring into hatred or contempt, or to excite disaffection
against the person of his Majesty, his heirs or successors, or the government and constitution of
the United Kingdom, as by law established, or House of Parliament, or the administration of
justice, or to excite His Majesty’s subjects to attempt otherwise than by lawful means, the
alteration of any matter in church or state law established, or to incite any person to commit any
crime in disturbance of the peace or to raise discontent or disaffection amongst His Majesty’s
subjects, or to promote feelings of ill will and hostility between different classes of such subjects.
(However), an intention to show that His Majesty has been misled or mistaken in his measures,
or to point out errors or defects in the government or constitution as by law established, with a
view to their reformation, or to excite His Majesty’s subjects to attempt by lawful means the
alteration of any matter in church or state by law established or point out, in order to secure
their removal, matters which are producing or have a tendency to produce, feelings or hatred
and ill-will between classes of His Majesty’s subjects, is not a seditious intention.”,5 this view of
the law of sedition was fully and plainly set out in the case; R V Collins, 6, in this case the jury
were instructed by judge Littledale. J, that they could convict of sedition, only if they were
satisfied that the defendant “meant that the people should make use of physical force as their
own resource to obtain justice and meant to excite the people to take the power into their own
hands, and meant to excite them to tumult and disorder”.

In the Zambian context, the offence of sedition is defined in the penal code, as the offence of
seditious practice where the test of intention is to be proved before the courts of Law. The penal
code has established what constitutes an “intention and for which the accused person may be
liable to conviction and sentence.”7 However, proof of both the relevant actus reus and the mens
rea of the offence of sedition is required before conviction.

The penal code8, defines the seditious intention as follows:

(1) To advocate the overthrow by an unlawful means the government as by the Law
established.

5
Stephen, I. J. (1884). Digest of Criminal Law. Pp 101 London: OVP
6
R V Collins (1882) EWLC C72
7
Penal Code, Cap 87, Section 60, Law of Zambia
8
Ibid
 (2) To bring into hatred or contempt or excite disaffection against the government.
(3) To bring into hatred or contempt or excite disaffection against the administration of
just in the country
(4) To raise discontent or disaffection among the people of Zambia.

The penal code, cap 87 section 60, does make provision that constructive criticism of certain
mistakes of government or errors of any kind committed by government without intending to
bring into hatred or contempt the government as by law established should not be taken to be
seditious intention, as illustrated in a leading Nigerian case of : DPP v Chike Obi,9 where
the Federal supreme court of Nigeria held that, “a person has a right to discuss any
grievance or offer criticism, canvass and censure the acts of government and their public
policy. He may even do this with a view to affecting a change in the party in power or to call
attention to the weakness of a government, so long as he keeps with the limit of criticism.”
Broadly, speaking, the offense of sedition, from its definition in the penal code, implies that
one must not utter words or circulate publication and other conduct which are against the
president, the government or the justice system of the state. This invariably stifles free speech
in particular political speech. Political speech given its fundamental and pivotal role it plays
in every democratic state requires protection, tolerated as the price for the free exchange of
political ideas.

A renowned legal writer, Wortman,10 has argued that the offence of sedition was impossible
in a democratic state, since it is assumed that the government was the people, who are the
institutional expression of the public’s opinion and will, so the government cannot be
criminally threatened by the public in the expression of its views. Wortman, further, suggests
that Literature, Science and the Arts were among the “foremost benefits derived from society”
and as a result, the government that “interferes with the progress of opinion, subverts the
essential order of the social order,11 political inquiry (Political speech) cannot be separated
from general intellectual rights. He argued that to promote the improvement of society, it is
essential that the mind should be free and people were allowed to “reflect and communicate
their sentiments upon every topic, all progress in all areas of knowledge would be

9
DPP V Chike Obi (1961) ALL N.L. R 186
10
Https://www.shmoop.com/free-speech/sedition-act/html. Retrieved on 16th October 2018.
11
Ibid
 threatened.” The importance of words in the offence of sedition, is well said, in his famous
opinion in the case of; Masses Publishing Co. v Patten,12 the District Court judge, Learned
Hand, referred to the strict judicial approach under which incitement may occur because of
something inherent in the particular words used regardless of the speakers’ intention and
without any further conduct by the speaker; he said, “Words are not only the keys of
persuasion, but the triggers of action and those which have no purport but to counsel the
violation of law cannot by any latitude of interpretation be part of that public opinion which
is the final source of government in a democratic state”13 Another highly ambiguous term in
the context of offences against the public order in which the offence of sedition falls, is the
concept of incitement (which is the Zambian penal code uses the synonym of exciting
disaffection). This ambiguity was highlighted by Holmes J and Brandeis in their joint dissent
in the case of; Gitlow v New York, 14 in which Gitlow had been charged with infringing a
criminal anarchy statute in that he advocated the duty, necessity and propriety of the forcible
overthrow of government were the judges said; “Every idea is an incitement. It offers itself
for belief, and if believed, it is acted upon unless some other belief outweighs it, or some
failure of energy stifles the movement at its birth. The only difference between an expression
of opinion and an incitement in the narrow sense is the speakers’ enthusiasm for the result.
Eloquence may set fire to reason. But, whatever, may be thought of the redundant discourse
before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs
expressed in proletarian dictatorship are destined to be accepted by the dominant forces of
the community, the only meaning of free speech, is that they should be given their chance and
have their way.” 15 From the foregoing, it is clear, that the offence of sedition requires
redefining so that it takes in the demands of a free and democratic society, which should
require that “the actus reus of sedition relate to the gathering of persons with the unlawful
purpose of which is to subvert or defy the functioning of state by force or violence, and it’s
mens rea to relate to an intention on the part of the participants is subvert or defy the state
by force or violence,”16 the reason for the redefinition of the law is due to the fact that a

12
Masses Publishing Co. v Patten (1917) 244 F 535
13
Ibid
14
Gitlow v New York (1952) 268 US 652
15
Ibid
16
Mhango, O. M. (2006). Sedition Law: A Critical Analysis of Chihana V Republic. Cape Town: UCT
 reasonable piece of legislation can be manipulated to fit the political attitudes, beliefs and
values of the government of the day.

Development of the law of sedition

In the 13th Century, the crime of sedition was first invented by the English court of Star
Chambers, because of the political belief that the King was above public criticisms and any
statements against the sovereign were forbidden, making it the first novel and inventive
means of silencing government opponents.17 Hence, “anyone who attempted to persuade
others that the governments’ methods were extremely erroneous must intend the expected
consequences of his acts, which would be rebellion.”18 The background to this offence, was
that the Monarch view the development of the printing press as a serious threat to their
sovereignty; due to its widespread use and dissemination of information in the second half of
the 13th century, this prompted the government to put up measures to control this
dissemination of information through the press. The measures were acts concerning
“Scandalum Magnatum” and treason, the former being acts of speaking ill of the king, the
latter was against the person or government of the king.19

Utterance was regarded as on its own, being able to cause an injury to the king, hence an
attack on his dignity of authority, so weakening the affection of his subjects in the same way
that libel or slander offended an individual’s reputation.”20 In support of this position, was
the eloquent explanation of chief Justice Holt in his writings in 1704 when he stated the
following: “To say that corrupt officers are appointed to administer affairs is certainly a
reflection of government. If people should not be called to account for possessing an ill
opinion of the government, no government can subsist. For it is necessary for all
governments that people should have a good opinion of it” 21 The first seditious libel case in
English court of the Star’ Chamber was in 1606 of; Rex v Tutchin, 22 in which the ratio
decidendi, Pronounced by Lord Coke, as that “Seditious Libel be it against the magistrate, or

17
Burchell, J. and Milton, J. (1991). Principles of Criminal law. Pp. 616, Cape Town: Juta & Co.
18
Howell, A. (1704). A Collection of State Trials. PP 109-1128, London: OUP
19
Mayton, W. T. (1984), Seditious Libel and a Lost Guarantee of a Freedom of Expression. Pp 84. London: Colum
20
Barendt, E. (1985). Freedom of Speech. Pp 158. London: Clarendon Press
21
Rex v Tutchin (1606) 77 E. R 251
22
Holt, J. (1704). A Complete Collection of State Trials. Pp 1096. London: OUP
 the other public persons, is a great offence for it concerns not only the breach of peace, but
also the scandal of government. It is therefore no material whether the libel be true or
whether the party, against whom it is made, be of good or ill fame”.

By the 18th century, the offence of sedition was regarded as a harsh and unjust law, which
was used by the political elite and the ruling classes to trample upon opponents of the
crown.23 However, because of the advantage the law gave to the politicians, it became a
convenient tool, in the hands of the rulers. Hence when the Penal Code was being drafted for
the colonial Northern Rhodesia, where the colonialists, had the task of suppressing
opposition from freedom fighters, it was only expedient that the law of sedition would be
included in the laws of the colony.

Conclusion

Since its inception in the court of Star Chambers in England, in the 13th century, the law of
sedition has been full of uncertainties in its meaning and in its application non-uniformity.
By the law being vague, generations of members of the ruling political class have ensured
that, they use it as a tool to censor any speech that goes against their interests. The law has
been left to reflect the existing political altitudes in the state.

23
Manning, R. B. (1980). The Original Doctrine of Sedition. 12(2), Pp99. London: Albion
REFERENCE

1. The People v Mwape(2000) HC 234

2. Chemerinsky, E. (2001). Constitutional Law. Pg 896. London: Aspen Law & Business
3. Stephen, F. J. (1883). A History of the Criminal Law of England. (II), Pp 299.
London:OUP
4. https://en.wikipedia.org/wiki/sedition. Retrieved on the 16th October 2018.
5. Stephen, I. J. (1884). Digest of Criminal Law. Pp 101. London: OUP
6. R v Collins (1882) EWLC C72
7. Penal Code, Cap 87, Section 60, Law of Zambia
8. Ibid
9. DPP V Chike Obi (1961) ALL N.L. R 186
10. Https://www.shmoop.com/free-speech/sedition-act, html retrieved on 16th October 2018.
11. Ibid
12. Masses Publishing Co. v Patten (1917) 244 F 535
13. Ibid
14. Gitlow v New York (1952) 268 US 652
15. Ibid
16. Mhango, o. M. (2006). Sedition Law: A Critical Analysis of Chihana V Republic. Cape
Town: UCT
17. Burchell, J. and Milton, J. (1991). Principles of Criminal Law. Pp 616, Cape Town: Juta
& Co.
18. Howell, A. (1704). A collection of State Trials. PP 109-1128, London: OUP
19. Mayton, W. T. (1984), Seditious Libel and a Lost Guarantee of a Freedom of Expression.
Pp 84. London: Colum
20. Barendt, E. (1985). Freedom of Speech. Pp 158. London: Clarendon Press
21. Rex v Tutchin (1606) 77 E. R 251
22. Holt, J. (1704). A complete Collection of State Trials. Pp 1096. London: OUP