The abrogation of the criminal defamation law, which, for more than a decade, had tormented media practitioners in the country, has received a rapturous welcome across the journalism divide indicating how this archaic law had stood as a real impediment in the path of democracy and media reforms.
In a rare show of solidarity, both public and private media chorused the same views as they cheered the death of a common enemy. The Chronicle, in its editorial comment, stated: “We join the wider journalism fraternity in applauding the Constitutional Court for striking down Section 96 of the Criminal Law (Codification and Reform) Act. The piece of legislation was outdated and uncivilised as it criminalised the practice of journalism and we agree with the full bench of the highest court in the land that criminal defamation has no place in a modern society.”
The story was hardly different in the private Press which reverberated with jubilation that indeed the impinging law had no basis for existence in a purported democracy.
Now, while we all join hands in celebrating the rescindment of the defamation law, the question that remains relevant for the future is this: Why should a law that has been declared invalid in terms of the old Constitution require ascertainment of its status under a new Constitution as was the case? A new Constitution cannot and should not resurrect a dead law. Media practitioners suffered needlessly under a law that should long have been deleted from the statutes. To examine the validity of a rescinded law under the light of the new Constitution is, by default, to acknowledge its existence under the old Constitution. If the court has declared a law to be unconstitutional in terms of the old Constitution, there is no legal basis for the same law to be revived for scrutiny under the new Constitution.
While the Media Institute of Southern Africa Zimbabwean Chapter (Misa) did well, but for the avoidance of doubt, to seek clarity on the status of the defamation law under the new Constitution, smacks of a fundamental flaw at law that provisions that were outlawed under the old Constitution could possibly become alive under the new Constitution. It was held that judgment in the case of former Standard journalists Nevanji Madanhire and Nqaba Matshazi was only made in the context of the old Constitution. In light of this ruling, it is incongruous to try and revive the criminal defamation law under the new Constitution because it creates an inconsistent state of affairs which could give rise to all laws previously declared dead under the old Constitution to become liable for consideration under the new Constitution. In fact, it is crucial that this point of law is settled because it sets a precedent for the future. Parliament, as things stand, has to realign a substantial number of laws with the new Constitution and it would be chaotic if all such dead laws would be invoked to be tested under the microscope of the new Constitution.
It is sad that journalists had to endure nights in the cells under a law that was long dead and had no constitutional basis. Chief Justice Godfrey Chidyausiku, sitting with eight other judges last week, rightly granted an application by Misa and correctly ruled that the law had been invalid from the very day it was promulgated in 2004, 12 years ago. Effectively, this means the media was persecuted under a void law whose only significance was to earn the country public opprobrium before the international community.
The defamation law was declared invalid under the old Constitution and naturally it had no legs to stand on under the new structure. It remained unconstitutional as it conflicted with Sections 61 and 62 which protect the right to freedom of expression, media freedom and access to information. How can a law that had been struck off in terms of the old Constitution qualify for consideration under a new Constitution? The crime should long have been scrapped from statute law. It has been used to needlessly harass the media. It is revealing that there has only been one successful prosecution for criminal defamation in the almost 36 years of independence, when a newspaper was found guilty of accusing the then Judge President of lying about a matter concerning his official duties.
Therefore, while we all rejoice in the knowledge that the judgment has removed the cloud of uncertainty around the existence of the defamation law and that finality has been brought on the status of the law before the new Constitution, we pray that the new dispensation will soon be aligned with the Constitution and that old rescinded laws are not invoked under the new Constitution. In the interim, however, we rejoice at the signal of an end of a dark era for the media.
lLearnmore Zuze is a legal researcher, author and media analyst. He writes here in his own capacity. E-mail:firstname.lastname@example.org