THE Constitutional Court of Zimbabwe (Concourt) yesterday delivered a landmark ruling decriminalising journalism, a victory for democracy and freedom of speech.
Elias Mambo
In a criminal defamation case the court ruled that criminal defamation was “not reasonably justifiable in a democratic society and is inconsistent with the freedom of expression guaranteed in the Constitution”.
In a case where then The Standard newspaper editor Nevanji Madanhire and reporter, Nqaba Matshazi were arrested for allegedly defaming founder and chairman of the Green Card Medical Aid Society, Munyaradzi Kereke, in November 2011, the Concourt, consisting of a full bench of eight judges ruled that criminal defamation has no place in a democratic society.
Madanhire was arrested and charged under Section 96 of the Criminal Law (Codification and Reform) Act after Kereke said the paper had published falsehoods and intended to cause serious harm to his reputation and that of the society.
“Having regard to all of the foregoing, I take the view that the harmful and undesirable consequences of criminalising defamation, viz, the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect,” read part of the judgment.
“Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat mischief of defamation . . . in short it is not necessary to criminalise defamatory statements.”
Constitutional law expert Chris Mhike said the Zimbabwe judiciary has taken a huge step in bringing the legal system in line with international standards.
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“This is a giant step towards aligning the legal system with regional and international contemporary standards,” Mhike said. “This is clear that criminal defamation is unconstitutional and can be resolved through the civil courts.”
Media Institute of Southern Africa (Misa) national director, Nhlanhla Ngwenya said: “Zimbabwe welcomes the Concourt’s ruling which reinforces that criminal defamation is unconstitutional as a significant milestone that will hopefully lead to the repealing of the offending legal provision.
“Misa-Zimbabwe, therefore, urges the speedy auditing of laws such as the Access to Information and Protection of Privacy Act (AIPPA), Broadcasting Services Act, Censorship and Entertainment Controls Act and Interception of Communication Act by the inter-ministerial committee to ensure compliance with the new Constitution.
“The law itself is archaic because it was crafted to protect interests of the elite and Zimbabwe has been using the same instrument in order to protect public officials.”
Zimbabwe Union of Journalists secretary-general Foster Dongozi said the ruling showed “we have not remained arrested by the past.
“It is a good day for journalism, a good day for freedom of speech and this reflects that we are moving from the barbaric past into a democratic future.”
In delivering the judgment, the Concourt also called on the minister of Justice Emmerson Mnangagwa to reform the law.
“In the result, the minister of Justice, Legal and Parliamentary Affairs is hereby called upon, if he so wishes, to show cause why Section 96 of the Criminal Law (Codification and Reform) Act should not be declared to be in contravention of Section 20 of the former constitution. The registrar is directed to set the matter down for hearing on the earliest available date,” the court ruled.
