Tuesday, November 17, 2009

The Chansa Kabwela case: a comedy of errors

The Chansa Kabwela case: a comedy of errors
By Professor Muna Ndulo
Tue 17 Nov. 2009, 05:30 CAT

COMMENTARY:In recent times the news from Zambia has been dominated by the events surrounding the prosecution of Chansa Kabwela on charges of distributing obscene materials contrary to section 177(a) of the Zambian Penal Code.

The fact that it has even proceeded this far in the court is a sad commentary and a literal comedy of errors. That it is currently before the courts is a result of errors of judgment on the part of the President and the police.

The situation is exacerbated by the failure to stop the prosecution on the part of the Director of Public Prosecutions. No other case has damaged Zambia’s image and standing as a tolerant and democratic country in the world than the Chansa Kabwela case.

The case has been widely reported in the international media and the prosecution has been condemned by just about every credible human rights and media organisation around the globe.

This case, more than anything else, demonstrates the hegemonic position occupied by the presidency in African politics and the weakness of state institutions that are supposed to provide checks and balances to the presidency.

In this saga, three institutions have failed the Zambian people. “Let's go hand in hand, not one before another”, Shakespeare writes in the Comedy of Errors and that is exactly what has happened in this frivolous process.

First, the presidency for failing to exercise self restraint and observe the limitations imposed on the presidency by constitutionalism.

Second, the police for failure to act as an independent professional force and third, the Director of Public Prosecution for failing to rise to the occasion and use his constitutional powers to stop the prosecution and thereby serve the best interest of the state.

Since 1857 when the first obscenity laws were passed in the UK, the classic definition of criminal obscenity has always been” if it tends to deprave and corrupt morals ” stated in 1868 by John Coleridge.

Perhaps the most celebrated case ever brought under the obscene publications Act in the UK was the 1960 prosecution of Penguin books for the posthumous publication of D.H. Lawrence book Lady Chatterley’s Lover.

The jury acquitted Penguin of all charges. It was established in that case that the objective of obscenity legislation is the protection of morals. In the United States, the concept of obscenity has been used to draw the line between prohibited and permitted sexual representations.

In Roth v US (1957) Justice William Brennan of the US Supreme Court held that obscenity is unprotected because it is “utterly without redeeming social importance.

Brennan confined obscenity to “material which deals with sex in a manner appealing to prurient interest.” He defined prurient interest as either “having a tendency to excite lustful thoughts “or as a “shameful and morbid interest in sex”.

He then promulgated the following test of obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

In Miller V. California (1973) the US supreme court ruled that “material is obscene if its predominant theme is prurient according to the sensibilities of an average person of the community, it depicts sexual conduct in a patently offensive way; and taken as a whole it lacks serious literary, artistic, political , or scientific value.”

The average person in Zambia, while no doubt being shocked and disgusted by the picture, would not regard the publication of pictures of a woman giving birth in order to expose the plight of ordinary people during a national strike by medical personnel as being prurient and having the effect or as intended to deprave and corrupt morals.

Instead, the pictures should lead to outrage and anger at those who were not making maximum efforts to end the strike.

The context and manner in which they were distributed leaves no doubt in one’s mind that the pictures were intended to make those in authority realise the serious impact of the medical strike and to bring about action to end the strike.

No doubt other situations could have been used but the choice of a maternity case was probably intended to touch the humanity in all of us and clearly succeeded in that objective.

As Shakespeare writes in the Comedy or Errors, “Every why hath a wherefore” (2.2.45). The wherefore was to show the horrible impact of the medical strike which justifies the why.

The source of the materials distributed eliminates any concerns relating to privacy issues and that would be for the woman in the picture to prosecute.

Pictures of a woman giving birth no doubt are inappropriate and the sight should make many cringe but cannot be erotic and do not deal with sex at all.

No doubt they are contrary to African tradition but that is not the test for obscenity and that is not what the obscene offences Act is designed to deal with.

The obscene offences Act when it comes to pictures is designed to deal with erotic pictures and their potential to corrupt the morals of those who view them. This case, more than anything else, illustrates poor governance and lack of independence on the institutions involved in the case-the police and the prosecution agencies.

It also illustrates the dominance of the Presidency over all other institutions. The President erred in getting involved in a matter that is clearly non-presidential.

If he felt that there might have been a criminal violation in the distribution of the pictures, his action should have ended at referring the matter to the police.

He was wrong to more or less direct the police to act. In a system that operates on patronage such as the Zambian system for a President to say “I hope those responsible for the law of this country will pursue this matter” amounts to a directive to officials whose survival depends on blind loyalty to do as he wishes.

Investigative and police wings of the government must be left to function professionally and independently.

Once the President made the mistake of issuing a directive to the police, the Inspector General of the Police compounded the situation by ethusistically carrying out the directive.

The police action shows lack of professionalism and independence. The Inspector General of Police should further realise that he is not a police man on the beat.

Where the head of the command is involved in issuing orders of arrest one begins to wonder as to who is doing the planning.

The tendency for the Inspector General to micro manage the police force as is evidenced by his recent instruction for the arrest of Kasama police officer who let a woman give birth in a cell regardless of whether an offence was committed or not will lead to an inefficient and ineffective police force.

Once the presidency and the police had erred in their handling of this case, it was then left to the Director of Public Prosecutions to step in and redeem the situation. In Zambia, the powers to conduct and supervise prosecutions of criminal proceedings are vested in the constitutional office of the Director of Public Prosecutions.

He or she has power to discontinue, at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or any other authority (Article 56). These powers are vested in him to the exclusion of any other person or authority.

I cannot think of a more compelling case than the Chansa Kabwela case for the excise of the Director of Public Prosecution’s power to discontinue a prosecution.

The case is not supported by the definition of obscenity, the distribution of the pictures was limited to a small section of leaders; and its objective was not to corrupt morals but to draw attention to the appalling conditions in the hospitals.

Ms. Chansa Kabwela explained that the photos were tearfully brought to the newspaper by the husband of the woman in the pictures in the hope that their publication might avert more tragedies.

Many of us disagree on the approach Chansa Kabwela adopted which might very well have been influenced by her frustration in dealing with the situation, but no one can doubt that any effort to end a strike which had caused so much suffering was a noble cause.

Besides, Chansa Kabwela, in a letter to the NGO Organisations acknowledge that in future she might do things differently.

In these circumstances, entry of a “nolle proseque” will be in the best interests of the country.

I am not advocating this approach because I am worried about Chansa Kabwela being convicted.

Not at all. I, like many others, have confidence in the men and women who run our courts and their ability to administer justice and interpret the law correctly.

The Kabwela saga should be brought to a rapid resolution in order to end the unnecessary depletion of resources, bring an end to the tarnishing of Zambia’s name abroad, and end the pain felt by Zambians as they endure this unnecessary court process.

Note:Muna Ndulo is Professor of Law at the Cornell Law School and Director of the Institute for African Development in the University.

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