By Professor Matodzi
Harare, June 12, 2014 – Zimbabwe’s media practitioners and media freedom advocates on Thursday received a major boost after the Constitutional Court described as unnecessary and unjustified the existence of provisions of criminal defamation on the country’s statutes.
In a ruling handed down by Justice Bharat Patel and concurred to by eight other Constitutional Court judges, the Constitutional Court ruled that the maximum punishment of two years imprisonment imposed for criminal defamation is “clearly excessive and patently disproportionate for the purposes of suppressing objectionable or opprobrious statements”.
The judgment following an application filed last year by Alpha Media Holdings’ journalist Nevanji Madanhire and Nqaba Matshazi for a permanent stay of prosecution on the charge of criminal defamation brought against them by Munyaradzi Kereke, the founder and Chairman of Green Card Medical Aid Society. In their application filed by their lawyers from Artherstone and Cook Legal Practitioners, the journalists had challenged the constitutionality of criminal defamation under the former constitution.
Madanhire and Matshazi were arrested and charged in 2011 with the crime of criminal defamation as defined in Section 96 of the Criminal Law (Codification and Reform) Act Chapter 9:23. The journalists were charged with criminal defamation and theft of documents, charges emanating from the publication of a story by The Standard newspaper of which Madanhire was editor then before being appointed editor of NewsDay while Matshazi served as a reporter before moving to Southern Eye where he is the news editor about Munyaradzi Kereke’s medical aid company, Green Card, allegedly facing possible collapse and failing to pay its members and staff as well as its creditors.
State prosecutors argued that Madanhire and Matshazi published the allegations knowing that they were false and intended to cause serious harm to the reputations of Kereke and Green Card Medical Aid Society.
The Constitutional Court ruled that the harmful and undesirable consequences of criminalising defamation compared to the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive.
“Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. In short it is not necessary to criminalise defamatory statements. 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,” reads part of the judgment seen by Radio VOP.
The apex court concluded that newspapers play a vital role in disseminating information in every society and 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.
“It is inconceivable that a newspaper could perform its investigative and informative function without defaming one person or another. The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices,” the ruling reads.
The Constitutional Court directed the Registrar to set the matter down for hearing on the earliest available date to allow Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa if he so wishes to show cause why Section 96 of the Criminal Law (Codification and Reform) Act Chapter 9:23 should not be declared to be in contravention of Section 20 (1) of the former constitution.
However, Mnangagwa was cautioned that if he intends to oppose the declaration he must “canvass new facts and legal instruments rather than recapitulate those that have already been traversed”.
Besides Madanhire and Matshazi several journalists are facing defamation charges including Daily News editor Stanley Gama and Fungi Kwaranba.