High Court dismisses Prime TV’s conservatory order application

THE Lusaka High Court has refused to quash the decision by the government to cease all cooperation with Prime Television.

Judge Catherine Phiri has dismissed the application for a conservatory order against government which Prime TV sought with regards to the directive issued by Minister of Information and Broadcasting Services Dora Siliya dated March 17, 2020.

Justice Phiri said that Section 16 was very clear that the court could grant any order against the State that it would have made between subjects but was precluded from granting an injunction or ordering specific performance against the State.

In this matter, Prime television petitioned the Lusaka High Court over government’s decision together with its agents to cease all cooperation with the television station.

Prime TV has cited the Attorney General Likando Kalaluka, Topstar Communications Company Limited and MultiChoice Zambia Limited seeking an order that Topstar and MultiChoice cannot remove it from the platforms they manage at the direction of government.

Prime TV also sought among other reliefs an order quashing Siliya’s order to cease all cooperation with it and compensation for loss of income and business resulting from the statement of Topstar.

The State in its opposition to Prime TV’s application for a conservatory order said the position taken by the private television station in these difficult times through out the globe defeated public interest.

The State has charged that Prime TV was still at liberty to receive and disseminate information as it still remains validly licensed pursuant to the Independent broadcasting authority Act No.17 of 2002 and the TV station is still currently broadcasting through Multi choice platform.

Government explained that it only indicated that it could not have any further dealings with Prime TV.

It said Prime TV’s rights to receive and impart information had not been affected at all by the state merely ceasing collaboration with it.

It said that the application for conservatory order should be dismissed for lack of merit because granting the order would injure public interest in a scenario where all media houses refuse to air or publish the sensitisation messages in the fight against coronavirus.

The State further argued that the High Court had no jurisdiction to grant conservatory orders against the State.

But in its reply to the argument in opposition to the application for a conservatory order by the State and MutliChoice, Prime TV said the court was clothed with the necessary authority to hear its application and grant the reliefs sought.

The petitioner said the High Court was bound by the Constitution in exercising its power to promote accountability which includes preventing the violation of fundamental rights as well as the potential future violation of human rights.

It argued that conservatory orders were different from injunctions although the effect may be the same.

” Article 28 of the Constitution does not prohibit the application for interim reliefs in the enforcement of the Bill of Rights. Article 28(1) indicates that the law allows a party to prevent the infringement of rights even before they happen. Article 28 further allows a party to make an application without prejudice to any other action relating to the same matter,” Prime TV said.

“Article 28 of the Constitution indicates that there is no requirement that a relief can only be granted once the main action has been determined. This is a misconceived argument as it would allow the State to carry out the most atrocious violations of human rights with no recluse available to those who seek to hold the State accountable.”

Prime TV prayed that the court should find that there were important questions on freedom of expression, including the right to disseminate and receive information without interference for Prime TV and the public to be determined.

And in her ruling, justice Phiri said the High Court was not at liberty to create its own rules and procedures nor was it entitled to enlarge its jurisdiction in terms of what remedies or reliefs it could grant to a party that comes before it.

“As our constitution is currently worded, there is no place for interim (interlocutory) orders when the enforcement of rights under Articles 11 to 26 is sought. The application before this court seeks to enforce rights under Article 20. Therefore, even by some stretch of jurisdiction under the state proceedings Act, Section 16, if I were persuaded to grant this conservatory order being sought (which I am not) it would not be tenable due to limitation placed by the interpretation of Article 28 by the Supreme Court,” justice Phiri said.

“Having found that this court lacks the requisite jurisdiction to grant the conservatory order applied for by the petitioner, it will be otiose for me to pursue the other questions that have arisen in pursuance of the application. The application for conservatory order is dismissed in its entirety as Article 28 of the Constitution does not provide for interim orders. ”

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