The Law Association of Zambia has made a statement on the "Chiluba is a thief" issue. Personally, I've began to lose confidence in this very noble institution simply because they have not really shown themselves to be completely impartial in their approach to many issues of national dispute. I would not go as far as saying they tend to take political sides, but I am always disappointed at the level of discourse they engage in. One would expect some dazzlingly brilliant arguments to regularly come from such an elite institution that could instantly put to rest any point of national debate, but this is hardly ever the case.

According to LAZ, it is illegal for anyone to call Chiluba a thief. Reason? Because his cases are still in court and because of the presumption of innocence principle. This is an incredibly illogical argument offered by our association of eminent men and women of the bar.

You see, firstly, none of us is omniscient. If I see a person wearing a black T-Shirt, I can say "that man is wearing a black T-Shirt" and no one can accuse me of lying as long as that's what I see. So, if someone gave me a picture with a man wearing a black T-Shirt, that's what I will say I saw. Now, it's possible that the man's T-Shirt appears black to me simply because of the special lighting in the room where his picture was taken. If you take that picture to some scientists, they might be able to deduce that the T-Shirt is actually not black but white; it only appears black due to the poor lighting in the room or something. At this point, I will know better, given this new context of knowledge.

But can someone tell me that it was wrong for me to identify that T-Shirt according to how I am used to perceiving things as a human being? No. If the scientist has extra tools that enables him to deduce actual colours, then good for him. But this does not mean all of us should always use these tools when we look at pictures.

What is important is that my identification is based on a reasonable deduction or honest perception. If I am taken before a judge for lying, he will try to see if he could have said the same thing if he was in my shoes. So, this picture will be presented to him (or the jury) and they will be rhetorically asked if it looks black to them. I will be acquitted of lying at that point, regardless of the "real" colour of the man's T-Shirt.

If the Post have reasonable grounds to believe that Chiluba is a thief, then everyone who is telling them that they have no right to say this are trying to deny them the right of expressing themselves and saying exactly what they are seeing. If the man's shirt looks black to them, they can rightly say that it is black. Even if the experts later discover that the Post was mistaken, this does not mean that the Post will be judged to be guilty of lying. No, the justice system will have a look at what they saw, and if they can come to the same conclusions as reasonable men, then they will let them go free.

In fact, this is what already happened. The Post was taken to court over their statements on Chiluba because it is a criminal offence to defame the president. The Post showed the court what had led them to that conclusion and the court decided to acquit them. It means the court could at least understand why the Post would come to that reasonable conclusion.

Someone tried to argue that this acquittal does not mean that the court had convicted Chiluba of theft. Yes, but who said that? When you argue against what no one is saying, it is called "attacking a strawman" (after building that strawman yourself!). This is a common fallacy in debate. It is very easy to create a false argument that no one is making and then you viciously attack that argument (which no one made) and thus convince yourself that you have made a devastating argument!

In this defamation trial, it was not Chiluba who was on trial. It was the Post editor, Dipak Patel, and Edith Nawakwi, the people who had called him a thief. When they were brought before this court, they did not deny that they called him a thief, neither did they try to argue on technicalities (of the wording they used, etc). They admitted that they did call him a thief and that they meant exactly that. But they pleaded not guilty to the charge of defamation simply because they had enough reason to believe they were right, and this is all that an accused person needs to show in such a case – just like our example above of the man in a black T-shirt.

So, although this does not mean that Chiluba is necessarily guilty, it does show that the conclusion that he is a thief is not an unreasonable or unfair one from the perspective of the Post (and the court that tried their case). It means that it would indeed be unfair to have expected the Post to come to any other conclusion given the evidence available to them and the way it appears, at least to the ordinary eye.

But most importantly, it also means that unless someone can show them otherwise (like the lighting scientist in our example did), they will continue to believe what they saw, especially since the court did in fact acquit them. By acquitting them, the court was saying "there is nothing wrong you are doing; you can continue doing it if you want to." So, how can the same justice system tell them this time, "it is wrong to continue doing what you are doing"? In other words, how can the same justice system that acquitted them of wrong turn around now and say that what they are doing is illegal?

Others say that the difference in this case is that they were tried in a criminal case that time, but this time they can be sued by Chiluba in a civil suit. Yes indeed, but so what? There is no difference in the actual content of a defamation case against the president and the defamation case against a private citizen. The rules are the same, the evidence is the same, the way you are convicted or acquitted is the same: it is only the punishment that is different if you are convicted (since one is a crime and the other a tort). So, there is absolutely no reason for the court to come to a different conclusion in this case. If the evidence showed that they did not defame him, why should the same evidence now show that they defamed him? Is that a reasonable thing to expect or even think?

In conclusion, I think that sometimes it is mere dishonesty that leads otherwise intelligent people to make the conclusions they make. We all know that in much more experienced countries it is very, very common to see the media say all kinds of things against a person perceived to be a criminal, even before a jury convicts him. Bill Clinton was called a liar, an adulterer, etc by so many respectable newspapers even while the Monica Lewinsky case was going on. In fact, it was because of such freedom of the Press that the truth even came out. In the OJ Simpson case, we all saw how media institutions gave their own verdict of whether the man was a "murderer" or not, way before the trial ended. Michael Jackson was called a child molester by all kinds of newspapers as the trial against him proceeded. The "shoe-bomber" was called a terrorist before the jury convicted him, and bin Laden is called a terrorist today even before he is caught, charged and convicted by the law. The "Law Association of America" (or indeed, the "Law Association of Britain") never tells anyone that it is illegal to use such terms before a court case against someone has been concluded!

But I think this is just dishonesty because even in Zambia, no one condemned the Post when they accused the MMD of rigging the elections even before the presidential petition case was concluded. Did the Law Association of Zambia make a statement on this "presumption of guilt" back then? But the real question is, why can't a reasonable person say what he thinks about someone just because the case against him has not yet been concluded?

In Zambia we even come up with silly excuses like, "saying what we think will influence the judges so no one should say anything while the trial is going on." Come on. Are the judges so dull that they can be swayed by every little thing anyone says? And if what people are saying is logical, why should we be afraid of "swaying" the judges anyway? If, on the other hand, it is completely illogical, why should our judges be so incompetent that they would fail to see an illogical argument? How come it is only judges who should be affected by public discussions? Why don't doctors get affected in their diagnosis of a patient when newspaper articles claim that they know what he is suffering from? I have a feeling that even this principle has been dangerously misconstrued by our legal experts. Again, in the United States people always conduct these public debates on issues that are tabled before their Supreme Court and they give their own opinions even as the Supreme Court is voting (they even say how they think each justice will – or indeed, should - vote!). Does Clarence Thomas or Antonin Scalia ever fear that their opinions could be negatively affected by the New York Times editorial? These are men of great intellectual distinction who would never demand to be "protected" from the opinions of the public as they are deciding on a case. I wish our press was also allowed to be that free.

Evidently, the countries from which we copied these principles like presumption of innocence (etcetera) have a very different understanding of what they mean from the interpretation given to us by our own Law Association of Zambia. Perhaps LAZ should send some people on a trip to some of these developed nations so that they can learn in practice what they only learnt in their textbooks at UNZA.

Or perhaps they could just learn to Google!