Welcome to the Digital Rights Advocates Blog Series, where we hear from lawyers litigating digital rights in sub-Saharan Africa.
Digital rights have become indispensable for people around the world to exercise and enjoy their fundamental rights. Independent media is increasingly moving online – from established newspapers and television channels to bloggers and human rights activists with large social media followings. However, this has been accompanied by an increase in states and other actors seeking to encroach on these rights. In the midst of a global pandemic, it is more important than ever that journalists and bloggers are able to carry out their work unhindered. As part of the Digital Rights Advocates Project, Media Defence works with lawyers litigating digital rights cases in sub-Saharan Africa to promote and protect freedom of expression online.
For this blog, we spoke with Michelle Mwiinga, a lawyer from Zambia. Michelle’s main areas of practice are civil and criminal litigation as well as corporate and commercial law. She has a particular interest in constitutional law and digital rights.
What motivates you as a lawyer and what do you find most interesting about your work?
What motivates me as a lawyer is the protection of human rights and more particularly what interests me is the effort to develop the law in a manner that advances human rights. I have been a practicing for four years.
Why is freedom of expression online important to you?
Freedom of expression online is important to me for various reasons, but essentially the vibrancy and good health of a democratic society depends on freedom of expression. The online space today is the frontier upon which people feel comfortable expressing themselves and it goes without saying that how the online space is managed has far reaching consequences and effects.
What’s the environment for digital rights and freedom of expression in Zambia?
The environment in my country for freedom of expression and digital rights is not favourable. Litigating such matters is challenging because they are usually tinged with political undertones. Zambia is a conservative nation and there is a need for more education on issues of digital rights and recognition of the need to protect them.
What legislation affects freedom of expression in Zambia?
There are various pieces of legislation that affect freedom of expression online such as the Penal Code Act Chapter 87 of the Laws of Zambia, the Electronic Communications and Transactions Act No. 21 of 2009 and the Zambia Information and Communication Technologies Act No 15 of 2009.
The legislation relating to freedom of expression and digital rights is undergoing review and we are likely to see new legislation being tabled before parliament, though the timeframe is uncertain. The consultation process is still ongoing so we keep our fingers crossed that the views of all relevant stakeholders shall be taken into consideration and the new legislation shall comply with human rights standards better than the current legislation. Especially with our Cabinet’s ratification of the African Union Convention on Cyber Security and Personal Data Protection.
Of concern are efforts to introduce a Bill regulating journalists as a profession. Due to the observed shortfalls in the process of consultation with the relevant stakeholders and the rationale for proposing the Bill, this is one proposed piece of legislation which has the potential to undermine freedom of expression depending on the restrictiveness of the provisions that may be drafted, if it is passed into law that is.
Could you give us an example of any digital rights/freedom of expression cases you’ve litigated?
One of the cases of interest I have handled is the case of The People v. Fresher Siwale in which my client was charged with the offence of Defamation of the President under section 69 of the Penal Code. The allegation was that my client, with intent to bring the name of the President into ridicule, published defamatory matter by word of mouth saying that Edgar Chagwa Lungu was not the President’s real name and that he was formerly known as Jonathan Mutaware and was an identity thief as he owned three National Registration Cards (NRCs). One of the issues surrounding the case is the violation of the freedom of expression, as it stands the case is still being tried.
Could you tell us about the Litigation Surgery you attended with Media Defence?
I attended the 2019 Litigation Surgery in South Africa and the surgery offered thorough training in the area of digital rights and freedom of expression and this has really helped me in my practice. I have also formed good relationships with lawyers from various jurisdictions and this has also broadened my knowledge regarding the legislation affecting digital rights in other countries.
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