A HARARE court yesterday granted an application by Zimbabwe Independent editor Vincent Kahiya and news editor Constantine Chimakure, facing allegations of â€œpublishing falsehoods prejudicial to the stateâ€, to refer their case to the Supreme Court arguing that the charge violated their constitutional rights to freedom of expression.
Magistrate Moses Murendo granted the application and remanded the editors to November 24 after upholding the state decision for the editors to remain on remand.
The journalists are jointly charged with the Independentâ€™s finance director, Michael Curling.
Kahiya and Chimakure are charged with publishing or communicating falsehoods when they published a story in May revealing the names of law enforcement agents involved in last yearâ€™s abductions of Movement for Democratic Change (MDC) and civic activists.
The story titled, â€œActivist abductors named â€“â€“ CIO, police role in activistsâ€™ abduction revealedâ€, stated that notices of indictment for trial in the High Court served on some of the activists revealed that the activists were either in the custody of the countryâ€™s notorious Central Intelligence Organisation or police during the period they were reported missing.
In his ruling, Murendo said while the state argues that the story in question was not in the interest of defence and public safety, the media had an obligation in the public interest to inform them of matters relating to their safety. Murendo said since state security agents failed to come forward to claim custody of the supposedly missing people, the development undermined public safety.
â€œThe application to have the matter referred to the Supreme Court is not frivolous and vexatious,â€ Murendo ruled. â€œThe court feels that not referring the matter to the Supreme Court will be wrongful.â€
Kahiya and Chimakure are challenging the constitutionality of Section 31 of the Criminal Law (Codification and Reform) Act, which they are charged under.
In their application made through lawyer Innocent Chagonda, the journalists stated that Section 31 of the Act, which attracts a maximum sentence of 20 years, is unconstitutional.
The defence team said the penalty of a 20-year sentence imposed by Section 31 is so heavy and disproportionate to the offence that it infringes Section 20 of the bill of rights.
Section 20 of the constitution of Zimbabwe guarantees the right to freedom of expression.
Chagonda also filed a second application in which he wants the Supreme Court to determine whether two law officers from the Attorney-Generalâ€™s Office, namely Michael Mugabe and Morgan Dube, cited as state witnesses, can act as both complainants and prosecutors at the same time in the case.
The two journalists submitted that as journalists, the very nature of their job obliges them to write on a regular basis, a task which they cannot safely or efficiently execute if they live in constant fear of arrest for their writings.
BY CHRIS MURONZI