Last week, 60-year-old Alinafe Paul of Balaka was arrested, charged and fined K3 000 ($5) or spend three months in jail for insulting President Peter Mutharika, contrary to Section 181 of the Penal Code.
He is said to have called the President names in displeasure at his leadership style. The man allegedly uttered the ugly words to a plant operator who was deployed to rehabilitate earth roads in the township.
His arrest has not gone down well with some governance institutions and individuals, including politicians who claim that the country’s presidents are over-protected from criticism.
“In all fairness, presidents and their work are subject to public scrutiny. This law is a sign of ignorance about democratic principles,” says Lucky Mbewe, spokesperson for the Grand Civil Society Coalition.
He says this is crucial now when people are generally frustrated and disgruntled due to the economic downturn.
“I should believe the Balaka man was expressing his anger against the president who, by virtue of being a public figure, is bound to be criticised by the public,” Mbewe says.
He cites an example of England where people can gather in places like the Hyde Park Speakers’ Corner and shower all sorts of insults to their leader, but no one is arrested.
“People are committing serious crimes in the country, but we wonder that the establishment is busy arresting poor and harmless souls for simply exercising their freedom of speech. You just don’t know how many people they are going to arrest because almost everyone has been expressing anger at the President just as the man from Balaka did,” he says.
Mbewe says the arrest shows that the State has not yet embraced democracy.
“This could make sense if we were a police state,” argues Mbewe.
Alliance for Democracy (Aford) president Enoch Chakufwa Chihana observes that leaders are insulted because they have not done well somewhere and that this should be accepted as normal practice.
“Much as I agree that the law was meant to bring dignity and respect to the presidency, I feel it’s not relevant in modern democracy. There’s a difference between the office of the president and the individual holding it,” says Chihana.
He gives an example of South African president Jacob Zuma whom, he says, is insulted on a daily basis, but Nelson Mandela, former president of the same country, was a hugely respected individual who rarely attracted insults from his people. “So, it is bad to thwart freedom of speech because it is fundamentally crucial for the sustenance of democracy,” says Chihana.
Lawyer Justin Dzonzi says people need to look at the issue from two angles in order to make informed comments or criticisms.
“This issue is found in a special law that deals with the presidency and is under the Protected Names, Flags and Emblems Act. It is there because the president is one of the protected names. Then there’s also another law which deals with criminal conduct called the Penal Code and under it are various offences including that of insulting a person. Now, if this insulted person is a woman it’s called ‘insulting the modesty of a woman’ but if it’s a man being insulted the offence doesn’t become one of insulting as such, but it may take the form of assault.
“This especially applies where the insults were accompanied by threats of physical harm, but if there was no element of physical harm in the insults then you can be charged with intimidation or conduct likely to cause breach of peace. So, to the best of my knowledge, the case of the Balaka man falls under this last part whereby the laws clearly state that if you conduct yourself in a certain manner likely to provoke ugly reactions, you cause breach of peace,” explains Dzonzi.
He adds: “Suffice it to say that within the same Penal Code, there are specific laws that also protect the presidency. If you speak ill of the president, saying things that may make people hate him or think less of him or even defame him, you may be charged with sedition.”
However, he also feels that such laws have no space in democracy.
“In a democracy, this law needs not to be a criminal offence even though I, by all means, can’t encourage people to insult the president or any other person because democratic rights have responsibilities. If you insult somebody, they ought to be given a legal remedy against such. However, I feel it would be way too much if this could earn somebody time in jail,” he says.
Dzonzi, who is also executive director for Justice Link, strongly thinks sedition laws are undemocratic and wishes they were scrapped off from the country’s statutes.
“We need to completely scrap sedition laws off because they are not in tandem with democratic tenets. Quite frankly, if you look at it critically you will agree with me that all politicians who speak about failures of the president during campaigns or sow seeds of disaffection against the head of State are in breach these laws.”