ConCourt decriminalises defamation

THE Constitutional Court (ConCourt) of Zimbabwe yesterday delivered a landmark ruling decriminalising defamation, which journalists, media activists and lawyers hailed as a victory for democracy and freedom of speech.

The ConCourt full bench comprising Justices Godfrey Chidyausiku, Luke Malaba, Vernanda Ziyambi, Elizabeth Gwaunza, Anne-Marie Gowora, Ben Hlatshwayo, Bharat Patel and Antoinette Guvava ruled that “the offence is not reasonably justifiable in a democratic society and is inconsistent with the freedom of expression guaranteed in the constitution”.

In delivering the judgment, the ConCourt also called on Justice minister Emmerson Mnangagwa to reform the codification 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 Criminal Law has been condemned as a tool for harassing and intimidating journalists especially from the independent media. In a case where the former Standard newspaper editor Nevanji Madanhire and his 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 ruled criminal defamation has no place in a democratic society.

Madanhire and Matshazi were arrested and charged under Section 96 of the Criminal Law (Codification and Reform) Act after Kereke said the newspaper had published falsehoods intended to cause serious harm to his reputation and that of the medical aid 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,” reads 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 lawyer Chris Mhike said the Zimbabwe judiciary has taken a huge step in bringing the legal system in line with international standards.

“This is a giant step towards aligning the legal system with regional and international contemporary standards,” Mhike said.“It is clear that criminal defamation is unconstitutional and can be resolved through the civil courts.”

In a statement, the director of the Media Institute of Southern Africa (Misa) Zimbabwe Nhlanhla Ngwenya said Zimbabwe welcomed the ConCourt’s ruling which he said reinforces the claim that criminal defamation is unconstitutional.

“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,” Ngwenya said.

The Zimbabwe Union of Journalists secretary-general Foster Dongozi said the ruling shows we have not remained arrested by the past.

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