Satire: DPP v PP: Civil Appeal No. 2001 of 2011

DPP v PP (Civil Appeal No. 2001 of 2011)

IN THE NYASALAND SUPREME COURT OF APPEAL

@ www.nyasatimes.com

NSCA CIVIL APPEAL NO. 2001 OF 2011

(Being Nyasaland High Court Civil Cause No. 2473 of 2011)

BETWEEN:

DEMOCRATIC PROGRESSIVE PARTY (DPP)………APPELLANT

AND

PEOPLE'S PARTY (PP)………….RESPONDENT

BEFORE:

The Honourable. Chief Justice Kanthu Ako

The Honourable Justice Terminator, JA

The Honourable Justice Angel of Doom, JA

Ndirande Love SC, BigMan, MyFriend, Socrates and Associates; Counsel for the Appellant

Mwenelondo SC, Mamame and Co; Counsel for the Defendant

Mr. Azeke, Official Interpreter/Recorder

LEGAL QUOTE OF THE DAY:

"When the law's on your side, pound the law; when the facts are on your side, pound the facts; and when neither is on your side, pound the table."

JUDGMENT

The parties in this case are Democratic Progressive Party (DPP), as the Appellant, and the People's Party (PP), as the respondent. In the High Court of Nyasaland, PP is suing four top DPP officials and MBC-TV for spreading “propaganda maliciously intended to create criminal offence.”

In the petition presented before the lower court, PP inter alia says:

“To allege that somebody has been pumping millions of kwacha for regime change is a serious offence. Let them prove before the court that honourable Khumbo Kachali gave K500 000 (about $3 000) and our president gave K2 million (about $12 000) to the civil society organisations.”

The individuals sued include DPP spokesperson Hetherwick Ntaba, campaign director Ken Zikhale Ng'oma, national organising secretary Francis Mphepo and Information and Civic Education Minister Patricia Kaliati.

Kaliati: Being sued by Bagus

Also at the wrong end of PP's suit is the MBC-TV because as PP submits, the public broadcaster did not make an effort to hear their side on the allegations and again acted in contempt of an injunction stopping MBC-TV from airing any material against the Vice-President (who is PP's President) without hearing her side of the story.

Again, Peoples Party organising secretary Salim Bagus is suing, in her personal capacity, the Minister of Information and Civic Education Patricia Kaliati, for defamation. According to documents, submitted to this court, at a press conference held at the Kaliati’s offices in Lilongwe on September 15, 2011, which was attended by different media houses, Kaliati used defamatory words against Bagus.

"The defendant [Kaliati] spoke the following words, defamatory of the plaintiff [Bagus]: ‘Salim Bagus went to Germany to collect funds for NGOs to organise anti-government demonstrations’," reads Salim Bagu's statement in part.

Salim Bagus is also accusing Kaliati of echoing her ‘derogatory’ remarks when she spoke to a local publication on September 19, 2011.

"The defendant spoke the following words defamatory of the plaintiff in the way of his position as a politician and businessman: ‘Salim Bagus has set his own house on fire’."

The long and short of the suit is that the remarks could be understood to mean that Bagus is a hypocrite who violates the NGO Act by interfering with the NGOs and encouraging them to engage in political activities on top of branding him as an arsonist.

"In consequence, the plaintiff's personal and business reputation has been seriously damaged and he has suffered considerable distress and embarrassment, including numerous anonymous telephone calls and sms texts [sic]," it reads.

Raising preliminary objections on behalf of their client, Counsel for DPP, Ndirande Love, BigMan, MyFriend, Socrates and Associates argued that PP should identify other fundraising avenues other than milking people through the courts. They contended that the people in PP joined politics with their two eyes wide open and therefore should accept whatever insults are hurled at them.

"If politicians were to be suing any one speaking against them, then a lot of Malawians would have been in prison today for publicly attacking Bingu. She has made her services available to the people, she must therefore brace herself for worst verbal attacks as campaign period approaches, and surely if she is really a leader worth her name she should avoid rushing to court over each and every attack,"said Ndirande Love SC, arguing on his client's behalf.

They further submitted that only an immature politician who would drag his opponents to court.

"They chose politics and if they would be suing people, how many are they going to sue?" concludes Ndirande Love SC. In this vein he prayed that the action be dismissed. The lower court overruled, hence this appeal.

The general principles:

The case put forward by the defendants is one of defamation. Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to cause the claimant to be shunned or avoided: Jones, Tort (2000).

The principle aim of the law of defamation is the protection of individual’s reputation. However, the central problem is how to reconcile this purpose with the conflicting demands of free speech. It is undeniable that both are highly valued in our society, the one as perhaps the most dearly prized attribute of civilized man, the other the very foundation of a democratic community.

The application of these principles to the present case

The matter before this court, vis-à-vis the preliminary objection, is to determine whether or not, a person by virtue of joining politics, abrogates his or her right to protection of his or her reputation, or indeed foregoes the remedies available in law if he or she is defamed.

The appellant's argument is that the people in PP joined politics "with their two eyes wide open and therefore should accept" whatever insults or lies are concocted against them, defamatory or not when under the same constitution and laws, people insulting the president – also a politician by profession – are being arrested and deported (the lucky ones that is, viz. Jumani and Cochrane Dyet), or "suicide-bombed", if they are unlucky and unknown, like Robert Chasowa –RIP.

We find these arguments immature, frail, pathetic and totally devoid of any basis in law. The arguments would have made sense if they were based on the perceived conflict of this (defamation) suit with the constitutional right of free speech as enshrined in the Republican Constitution.

But even then, the right to free speech comes with the responsibility i.e. not to slander or libel others – which is the matter that the High Court of Nyasaland will determine in the cases above. Moreover, unlike Jumani and the late Robert, who were never given a real chance to defend themselves, Kaliati and company have been granted a golden opportunity to defend their statements. This level of hypocrisy cannot be tolerated by this court.

In this regard, we find that the PP has not erred in suing the aforementioned, and hereby dismiss, with costs, the preliminary objections made by Counsel for the Appellant.

DELIVERED in Open Court this 30th day of September 2011, at Blantyre.

Sgd   ………………………………………………

Kanthu Ako,  CJ

Sgd        …………………………………………

Terminator,  JA

Sgd        …………………………………………

Angel of Doom,  JA

Nyasa Times 29 Sep, 2011

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Source: http://www.nyasatimes.com/malawi/2011/09/29/satire-dpp-v-pp-civil-appeal-no-2001-of-2011/
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