Concourt ruling: Charting way forward

A FEW weeks ago we had a visit here at Alpha Media Holdings from Media, Information and Broadcasting Services minister Jonathan Moyo.

Editor’s Memo with Iden Wetherell

Given the acrimony of previous years, his tour was a convivial affair with the minister very obviously enjoying his exchanges with members of the fourth estate.

It wasn’t always like this. Relations had been fraught in the period from January 2002 when Moyo had steered the Access to Information and Protection of Privacy Bill (Aippa) through its various readings which resulted in journalists being arrested and incarcerated for violations of the Act.

It was not a happy time. When Aippa proved a clumsy instrument, government resorted to another weapon, the Criminal Law (Codification and Reform) Act. This catch-all legislation contained a particularly pernicious Section 31 dealing with criminal defamation.

I pointed out to the minister during his visit that several of our journalists had fallen foul of this legislation. Section 33 deals with the offence of undermining the authority of or insulting the president.

This is relevant because criminal defamation has its roots in English common law and was used extensively throughout the British Empire to silence nationalist voices.

In Rhodesia, for instance, it led to the prosecution of James Chikerema for reportedly calling the Minister of Native Affairs, Sir Patrick Fletcher, a thief.

But after independence in many Commonwealth states it was repealed as inappropriate in a democratic society. I was attending a meeting of the Commonwealth Press Union in Sri Lanka in 2005 when its new government, containing many publishers, took steps to repeal the measure in that country.

With this in mind, many journaIists will have welcomed the ruling by the ConstitutionaI Court (Concourt) this week that sections of the Act be struck down as unconstitutional. Section 31, which criminalises publishing or communicating false statements prejudicial to the state, and Section 33, which as mentioned criminalises undermining the authority of the president, were challenged by our editors Vincent Kahiya and Constantine Chimakure, and artist Owen Maseko.

Justice minister Emmerson Mnangagwa was invited by the court to show cause why the provisions should not be struck down. He has a date for November 20.

Deputy Chief Justice Luke Malaba, sitting with other judges, said it was a fundamental principle of the protection of freedom of expression that the state should not penalise people who make false statements in good faith about a matter of public concern. This is good news because it has put the new constitution to the test.

I am not sure I agree with minister Moyo that we should strengthen civil defamation if criminal defamation goes. Those entering public life should expect greater media scrutiny.

That should be the rule. But it is open to debate.

Now with criminal defamation facing repeal, according to Moyo, we need to examine other media-unfriendly laws such as the Public Order and Security Act, Broadcasting Services Act and the Interception of Communications Act.

Minister Moyo has made a good start. But he needs a robust press as a public watchdog if he is to succeed. Perhaps he should come and see us again soon when we can point the way!

Top