By Louis Blom-Cooper
WHATEVER hopes mi-ght have been entertained that the judiciary in Zimbabwe would curb the worst excesses of President Robert Mugabe’s regime have been dashed by a de
cision last month of the Supreme Court which can be characterised only as astonishing.
Associated Newspapers of Zimbabwe, which owns and until now operated the country’s only independent daily newspaper, the Daily News, challenged the Access to Information and Protection of Privacy Act (which came into force in March 2002) on several grounds of violating the constitution’s guarantees of freedom of expression. The newspaper resolutely refused to apply for its publication to be registered (and for its journalists to be accredited) by a statutory body, the Media and Information Commission, and was therefore potentially breaking the law.
But the Chief Justice, Godfrey Chidyausiku, and his four colleagues on the bench denied the newspaper access to the court for a declaration that many parts of the press legislation were unconstitutional, so long as the newspaper remained unregistered. After the ruling, the newspaper applied for registration but was turned down by the commission.
In his ruling (to which the four judges nodded formal consent), the Chief Justice did at least acknowledge that while the registration provision in the Act was “not blatantly unconstitutional”, its constitutionality was ” debatable”.
So what could possibly bar the newspaper’s way to asking the court to engage in justified debate? The court’s refusal to entertain the constitutional challenge is frankly implausible, if not what Jeremy Bentham would call “grimgribber nonsense”.
The court said that the newspaper was in defiance of the law in declining to register and was hence in contempt of the law. It came to court with “dirty hands”, a deLatinised version of the legal doctrine of ex turpi causa non oritur actio.
That doctrine, which denies any remedy to a litigant who does not come to court with clean hands, applies exclusively in private law. Yet no one seriously supposes that in the field of public law, especially where the issue is of constitutional proportion, the clean-hands approach has any application.
The Zimbabwean ju-dges’ approach does not even have historical support, let alone modern authority. When John Hampden in 1635 refused to pay money in response to the decree of Charles I commanding support to furnish the Navy’s ships, the judges heard the case.
After argument in the Exchequer Chamber, seven judges found for the King, holding that the monetary exactionwas justifiable; five judges found for Hampden. The majority took the absolute view that the King can do no wrong – and certainly not during a state of emergency. Parliament’s consent for taxation was held to be not necessary. The majority decision was reversed by the Long Parliament and the Bill of Rights declared that it was illegal to raise money without parliamentary approval.
Doubtless, the Zimbabwean judges would say that Hampden had been defying the law of the land and could not challenge the King’s edict in his courts. Even if it can be said that defiance of the law constitutes outlawry, that concept was abolished in civil proceedings in 1879 and in criminal in 1938, but had been in disuse long before these dates.
What is more depressing about the decision is the failure of the Chief Justice to apply the law as laid down by one of his predecessors. In a case in 1983, Minister of Home Affairs v Bickle, in which, coincidently, I appeared as leading counsel for the minister, the Supreme Court held that a person who may be guilty of contempt of court will not ordinarily be precluded from instituting a constitutional challenge, in that case an expropriation of a farmer’s property.
John Fieldsend, the first Chief Justice of Zimbabwe after independence in April 1980, said: “It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave consideration of public policy. It is a step which the court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.”
The behaviour of the owners of the Daily News constitutes no conceivable impediment to justice being done. If the legislation restricting the fundamental freedom of the press in Zimbabwe is unconstitutional, the Supreme Court must say so. Refusal to hear the case on some spurious device to deny an individual citizen the fundamental right of access to the courts cannot be treated seriously by the democratic world.
The judges, therefore, now have an opportunity to redeem themselves and demonstrate that their judicial oath requires them to adjudicate on the paper’s challenge. – The Times (UK).
Sir Louis Blom-Cooper QC was a deputy High Court judge from 1992 to 1996.