LUSAKA Chief Resident Magistrate Charles Kafunda on 16 November 2009 acquitted Post News Editor Chansa Kabwela of the case in which she was charged with one court of circulating obscene materials or things that corrupt moral contrary to section 177 1 (b) of the Penal Code chapter 87 of the Laws of Zambia.
Kabwela allegedly circulated the pictures between June 1 and 10, 2009 in Lusaka and the Zambian Government premised their case on the notion that the images tended to corrupt morals.
In June 2009, Kabwela received photographs of a woman giving birth outside a hospital in Lusaka without medical care at the peak of health workers’ strike but since they were gruesome she decided not to publish them but wrote a letter and enclosed the same photographs which she sent to Vice-President George Kunda, Health minister and other civil society organization hoping the pictures would move them to end the strike.
Delivering the ruling in a packed courtroom, magistrate Kafunda said the photographs in question were actually meant to address matters of national interest in the health sector. He said there were two ingredients that had to be considered in determining whether Kabwela could be placed on her defence or not. Magistrate Kafunda said for the offence at hand to be made out, it was necessary to establish whether Kabwela did circulate the photographs and also that they corrupted the morals of the people they were exposed to. Magistrate Kafunda said it was not in dispute that Kabwela circulated the photographs.
Therefore, I do not wish to belabor the issue of circulation, which in my view is a settled matter and has not been contested by the defence, he said. He said the photographs were circulated and exposed to those who came as state witnesses. But he said in determining whether there had been any prima facie case made against Kabwela, the second and last ingredient of whether they tended to corrupt the morals of those the photographs were exposed to had to be considered. Magistrate Kafunda said he had looked at the photographs themselves and what they portrayed. He said one of the pictures showed a woman in labour with a ‘dead’ baby coming out legs first.
I have had recourse to the photographs in question. I do sympathise with the witnesses as to the effect the photographs generated in them but unfortunately that in itself does not amount to corruption of morals, magistrate Kafunda said. I saw no evidence whatsoever Magistrate Kafunda said having considered the evidence, he had found that the prosecution had failed to prove the obscenity and corruption of morals ingredient. He said against that background, it would be prejudicial for the court to place Kabwela on her defense.
This trial must therefore terminate, magistrate Kafunda said. He said this was so because no case had been made out against Kabwela by the prosecution and that he was therefore accordingly acquitting Kabwela and dismissing the case against her under Section 206 of the Criminal Procedure Code (CPC).
The state has right to appeal, said magistrate Kafunda. Following the court’s pronouncement, the audience, which included family members, media workers, members of the public, politicians and activists, filed out of the courtroom in a celebratory mood. One of Kabwela’s lawyers, Remmy Mainza, told journalists that it was clear from the outset that the case was not one that should have seen the inside of the courtroom.
I do not know the motive of the prosecution, he said. The law was on our side. I was confident and that is why we put up a good fight based on the fact that the law was on our side. Mainza said the prosecution did put up a good fight only that the facts were against them. In an interview, Kabwela said the outcome of the case was not for herself or for The Post but for the poor woman who was in the ‘labour’ pictures and for those other people that suffered during the health workers’ strike. I have been vindicated. I have always said that whatever I did was purely out of goodwill on behalf of The Post, Kabwela said. I think I can’t find the right words to use at the moment. I am happy that the court has vindicated me. Whatever I did on behalf of the newspaper was not in any way meant to discredit anyone. The letter to the Vice-President (George Kunda) was very clear. I was merely trying to bring to attention the situation in the hospitals.
Kabwela said the fact that some people had interpreted her decision as a circulation of pornography was something she would live with because she could not understand such perceptions arising from a sad picture. Kabwela said The Post and herself were able to face the case following the immense support they got from members of the public.
Background
Kabwela was arrested and prosecuted after Zambian President, Rupiah Banda on 24 June 2009 called on action from authorities over pictures that were circulating. The pictures showed a women giving birth outside the University Teaching Hospital (UTH) without support from the health workers because they were on strike. The pictures attached with a letter also received by MISA-Zambia were sent to George Kunda, the Zambian Vice President, Secretary to the Cabinet Joshua Kanganja, Minister for Health Kapembwa Simbao, Nongovernmental Coordinating Council (NGOCC) and Zambia National Womens Lobby (ZNWL) by The Post Newspapers. According to President Banda, the women movement went to meet him to express concerns over the pictures. Banda described the pictures as pornographic material. Managing Editor of The Post Amos Malupenga told MISA-Zambia on 24 June 2009 that the paper circulated the materials to assist the state to understand the severity of the strike by nurses and health workers to ordinary Zambians. The Post could not publish the pictures in the paper because there were too graphic.
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