JUSTICE, Legal and Parliamentary Affairs minister Emmerson Mnangagwa has challenged the Constitutional Court’s (ConCourt) ruling that section 31 (a) (iii) of the Criminal Law (Codification and Reform) Act, which criminalised “publishing or communicating statements prejudicial to the State”, was in violation of people’s rights to freedom of expression.
The full ConCourt, bench led by Chief Justice Godfrey Chidyausiku, last month delivered a landmark ruling and urged the invalidation of the said repulsive law on the basis that it contravened section 20 (1) of the Constitution.
The ConCourt ruling came after Alpha Media Holdings group editor-in-chief Vincent Kahiya and NewsDay editor Constantine Chimakure challenged the constitutionality of a section of the Criminal Law (Codification and Reform) Act which criminalised “publishing or communicating statements prejudicial to the State”.
The court then called Mnangagwa to appear before it yesterday “to show cause why” the section of the code should not be invalidated. Mnangagwa, however, argued in his heads of arguments that the ConCourt had “failed” to carefully take a correct approach in examining the questions by confining itself to the particular cases before it.
“Statute must be analysed in the abstract so that they will be avoidance of danger of failure to consider the constitutionality of the same section in the light of any other possible allegations based on the same section having been laid against some other criminal aspect,” Mnangagwa said.
He further said the court also misdirected itself in holding that content-based expression should not be prohibited yet the same authorities the court cited from Canada and United States of America provided for content-based restrictions to freedom of expression.
The minister also added that the ConCourt erred when it found that publication of falsehoods as defined in section 31(a) (iii) of the code does not serve an interest protected under section 20(2) of the former Constitution yet the whole section criminalises forms of acts that affect public order and public security.
The matter failed to be argued and was postponed indefinitely after the lawyers of the applicants (Chimakure, Kahiya, Zimbabwe Independent publishers and Owen Maseko) requested for time to go through Mnangagwa’s heads of arguments before submitting their responses.
Mnangagwa argues that a section of the code termed “publishing or communicating statements prejudicial to the State” under which Chimakure and Kahiya were charged should be maintained.
Chris Mutangadura, from the Prosecutor-General’s Office, represented Mnangagwa, while Chimakure, Kahiya and Zimbabwe Independent were represented by Miranda Khumalo and Maseko was represented by Advocate Zvikomborero Chadambuka.