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Zimbabwe Court rules criminal defamation unconstitutional

Zimbabwe Court rules criminal defamation unconstitutional

Published: 12 June 2014

ZIMBABWE – The Constitutional Court ruled yesterday that criminal defamation must be struck off the statutes because it is not a justifiable law in a democratic society like Zimbabwe’s.

The court invited Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa to defend the law if he so wished, before a final declaration is passed.

The Constitutional Court said this in a case brought by former Standard newspaper editor Nevanji Madanhire and reporter Nqaba Matshazi, who were being charged with criminally defaming Green Card chairperson Dr Munyaradzi Kereke. Chief Justice Godfrey Chidyausiku ruled that criminalising defamation violated people’s freedom of expression and muzzled the media.

The journalists, charged with breaching Section 96 of the Criminal Law (Codification and Reform) Act, were seeking permanent stay of prosecution and repealing of the section from the statutes saying it was unconstitutional. Madanhire and Matshazi were arrested after Dr Kereke reported to the police that they criminally defamed him in an article published in the Standard of November 6, 2011.

The article said Green Card was on the brink of collapse and failing to pay members, staff and creditors. A Harare magistrate referred the case to the Constitutional Court after a successful application for such by the journalists. “In short, it is not necessary to criminalise defamation statements,” said Chief Justice Chidyausiku yesterday.

“Consequently, I am satisfied that the offence is not reasonably justifiable in a democratic society within the contemplation of Section 20(2) of the former Constitution. Accordingly, it is inconsistent with the freedom of expression guaranteed by Section 20(1) of that Constitution.”

Chief Justice Chidyausiku held that the journalists successfully proved their case. “They have succeeded in demonstrating that the offence of criminal defamation is not reasonably justifiable in a democratic society on any of the grounds mentioned in Section 20(2) of the Constitution,” he said.

“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(1) of the former Constitution.”

Chief Justice Chidyausiku directed the Chief Registrar of the Superior Courts to set the matter down for hearing at the earliest available date if Minister Mnangagwa wanted to defend the law. If the minister wants to defend the law, he must bring new facts and legal arguments other than those already heard by the court.

It could not be established yesterday what Minister Mnangagwa makes of the ruling. The court held that the media had an important function of disseminating information and facilitating accountability.

“Part and parcel of that role is to unearth corrupt or fraudulent activities, executive and corporate excesses and other wrongdoings that impinge upon the rights and interests of ordinary citizens,” said Chief Justice Chidyausiku.
“It is inconceivable that a newspaper could perform its investigative and informative functions without defaming one person or another.”

Chief Justice Chidyausiku added that the maximum penalty of two years imprisonment for criminal defamation under the Criminal Law (Codification and Reform) Act was harsh. “This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statement.”

The court hailed the United Nations Commission on Human Rights castigation of criminal defamation. The African Commission on Human and People’s Rights, in Resolution 169 adopted on November 24, 2010 also condemns criminal defamation in the context of the media and calls on all member states to repeal such laws.

  • libertyatliberty

    By Njabulo(impartial)

    Zimbabwe Teachers’ saga

    The attack on Shona speaking teachers or Ndebele speaking teachers should not be
    condoned by anyone. The perpetrators of such a crime should be dealt by the law
    enforcements agencies without delay. This is the 21st century .You
    cannot deny others the right to work were they want to work in their own
    country.Of interest, is that the perpetrators of this crime are not enlightened
    in terms of the history of Zimbabwe. Father Zimbabwe did not advocate for a
    divided Zimbabwe nor did he advocate for regionalism. That is why ZAPU PF was
    made up of Shonas and Ndebeles.Lest these people do not know .Think of Joseph
    Msika .Think of Chinamano.Think of Banana (ZANU PF President) just to name a few. History
    teachers and social studies teachers need to emphasise this when teaching the
    war of liberation. Even post independence ZAPU PF remained like that.ZANU PF(Robert
    Gabriel Matibili Mugabe) which merged with ZAPU PF (Joshua
    Mqabuko Nyongolo Nkomo ) is made up of Shonas and Ndebeles.Let them also be
    reminded that MDC ,is also a political party of Shonas and Ndebeles.This is
    making mockery of Thokozani Khuphe and other politicians who come from Plumtree
    ,who are associated with political parties that are made up of Shonas and
    Ndebeles.What these people are trying to create ,is a Zimbabwe which was not
    envisaged by Dr Nkomo.This is making a mockery of his wish. He died a happy man
    having embraced the policy of reconciliation. So why undo what he created? Why
    dichotomise Zimbabwe? Why polarise the peace loving people of Zimbabwe? This is
    like reversing the wishes of Mandela in South Africa. Today in Zimbabwe there are intermarriages. To be precise these
    intermarriages began many years ago in Zimbabwe .

    By Njabulo(impartial)

  • njabulo

    qq; Njabulo ; PHD ; first lady and VP

    Politicks aside. Everyone has the right to education. It
    does not matter their political standing, political affiliation or their rank
    in society. That is a right that no one has a right to forfeit (not in any part of the world).This
    right in question is embodied in the Zimbabwe constitution. Furthermore
    ,it is only the University
    of Zimbabwe which has the
    prerogative to declare that PHD void or a competent court of law( in
    exceptional cases). Aside that there is no any other body or institution which
    can declare it as invalid. It would also amount to a breach of her human rights ,should anyone or group of
    persons challenge that in a competent
    court of law. Furthermore ,that action would be construed by many as a way of
    undermining the University
    of Zimbabwe which has a
    great reputation. One wonders whether this is an attack on the persona of the
    first lady or the University
    of Zimbabwe or the
    political party to which she identifies to.? In my view, this adversity derives from political hatred of the political
    party which she is affiliated to. Lets put politics aside when analysing such

    Njabulo(my right to comment)(also your right to comment)