Zambia's 'porn' trial is obscene

The news editor of the largest independent daily newspaper in Zambia, The Post, is being prosecuted for distributing obscene materials. Her crime? During a recent doctors' strike Chansa Kabwela sent the country's vice-president and health minister and NGOs photographs of a woman forced to give birth outside a hospital. The woman had been turned away from two medical clinics and the graphic images, taken by the women's husband, show her on the ground, legs spread, delivering the fetus in a breach position. The woman survived, the baby suffocated. Zambia's president, Rupiah Banda, denounced the photographs as pornographic and the government's outrage is focused not on a failed public health system which forces women to give birth on the street but on Kabwela's attempt to bring the case to their attention. She faces five years in jail.

Last week, The Post published an opinion piece I had written in which I suggested that the reporter's prosecution was unnecessary and was damaging Zambia's image abroad. The criticism was directed at the political nature of the prosecution and not the court. But instead of rethinking their actions, the prosecution have argued that The Post and I should be cited for contempt of court on the grounds we are attempting to influence the court. The magistrate agreed. Both cases are symptomatic of the government's desire to punish a publication that has long been a thorn in its side.

The Post has a proud tradition as one of Zambia's independent voices and it has been critical of the government's handling of corruption cases. Having failed to silence the independent media by other means, the government seems to have resorted to trying to use the criminal process to silence its critics. This case is the perfect demonstration of the hegemonic position occupied by the presidency in African politics and the weakness of the state institutions that are supposed to provide checks and balances. First, the president initiated the case by calling for Kabwela's prosecution. In doing so he failed to exercise self-restraint and observe the limitations imposed on the presidency by constitutionalism. Second, the police failed to act as an independent, professional force and third, the director of public prosecution failed to use his constitutional powers to stop the prosecution.

If the president felt that the distribution of the pictures were a criminal violation, he should have merely referred the matter to the police. Instead, he more or less directed the police to act. In a system that operates on patronage, a president saying "I hope those responsible for the law of this country will pursue this matter" amounts to a directive for officials whose survival depends on blind loyalty.

It was left to the director of public prosecutions (DPP) to step in and redeem the situation. I cannot think of a more compelling case for the excise of the DPP's power to discontinue a prosecution. These proceedings are 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 Zambian hospitals.

These pictures should have led to outrage and anger at the government's failure to end the strike. Kabwela's intention was to "illustrate how bad things had got in the public health sector. If this was happening in Lusaka, imagine what it is like in rural areas. Unlike ministers ordinary people can't go instead to private hospitals."

The real shame of this case is that the hopes of the parents of the dead baby, that the images might avert more tragedies, have come to nothing.

Muna Ndulo, professor of Law at Cornell University Law School.