Constitutional Court judgment on criminal defamation progressive

This is a follow-up article to my previous instalment entitled Criminal defamation laws: Interrogating their legitimacy, in which I was arguing that criminal defamation laws are inimical.

Column by Proceed Manatsa

They do not advance any aim in a democracy, they lack justification, they run counter to the international benchmarks on media freedom, and they are not in consonance with the spirit and ethos of the new Zimbabwean Constitution.

Yet alone, reputational harm is adequately protected under the civil law of defamation.

In view of the above, the recent judgment by the Constitutional Court (ConCourt) to the effect that criminal defamation laws should be scrapped from our statute books is both a commendable and progressive move.

On Thursday June 12 2014, the Constitutional Court bench comprising of Justices Godfrey Chidyausiku, Luke Malaba, Elizabeth Gwaunza, Vernanda Ziyambi, Ben Hlatshwayo, Anne-Marie Gowora, Antoinette Guvava and Bharat Partel made a landmark ruling to the effect that the offence of criminal defamation “is not consistent with the freedom of expression guaranteed in the Constitution”.

Furthermore, the ConCourt ruled that criminal defamation laws must be struck off our statute books.

For many years, the laws of criminal defamation have been condemned by International bodies.

In 2002, the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organisation for Security and
Co-operation in Europe Representative on Freedom of the Media and the Organisation of American States Special Rapporteur jointly declared that: “. . . all criminal defamation laws should be abolished and replaced where necessary with appropriate civil defamation laws.”

In 2005, the Special Rapporteur for Freedom of Expression for the African Commission on Human and People’s Rights, Andrew Chigovera and his Inter- American Court of Human Rights Organisation of American States counterpart, Eduardo Bertorn issued a joint statement to the effect that criminal defamation laws are incompatible with freedom of expression.

Against such a backdrop, the Constitutional Court ruling is highly laudable.

The ruling marks the dawn of a new era for Zimbabwean media practitioners and is a great leap forward toward the alignment of the domestic legal order with international benchmarks on media freedom and freedom of expression.

The above notwithstanding, it should be remembered that the ConCourt judgment is just but a ruling and it remains to be seen whether the government would decriminalise or defend the offence.

In the event that the ConCourt decision is implemented, there is no doubt that it would have far reaching consequences on freedom of expression and media freedom in Zimbabwe as journalists would now have to embark on their journalistic tours without the threats of any fear or reprisals arising from media reporting.

Should Zimbabwe abolish criminal defamation laws, she would join Ghana, Bosnia-Herzegovina and Togo in being one of the few countries that set an important precedent for the abolition of criminal defamation.

l Proceed Manatsa is a Registered Lawyer, Researcher and Associate Lecturer in the Private Law Department at Midlands State University. He writes in his personal capacity. He can be contacted at manatsap@msu.ac.zw.

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