ConCourt ruling unshackles media

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LAST week’s landmark ruling by the Constitutional Court of Zimbabwe (ConCourt) decriminalising defamation has been met with jubilation by journalists, media activists and civil society, amid fresh calls on government to repeal the law and all other “draconian” legislation which has been an albatross around the necks of media workers.

Elias Mambo

In its ruling, a 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 (criminal defamation) is not reasonably justifiable in a democratic society and is inconsistent with freedom of expression guaranteed in the constitution”.

The ConCourt called on Justice minister Emmerson Mnangagwa 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.

“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.”

In criminal defamation, anyone convicted of the crime may be ordered to pay a fine, perform community service, or sent to prison for a period not exceeding two years.

Former Standard editor Nevanji Madanhire and his reporter Nqaba Matshazi challenged criminal defamation in the ConCourt.
In the case, Madanhire and Matshazi were arrested for allegedly defaming founder and chairperson of the Green Card Medical Aid Society, Munyaradzi Kereke, in November 2011, but the ConCourt ruled criminal defamation has no place in a democratic society.

Following the ruling, media analysts and journalists are now calling on government to repeal all other laws used to systematically intimidate and harass journalists from the private media, thereby reducing the democratic space in the country by stifling dissenting voices.

Media Institute of Southern Africa (Misa) Zimbabwe, whose role among others is to lobby parliament and policymakers on reforming media laws in the country, said the ConCourt ruling reinforced the claim criminal defamation was unconstitutional.

Misa-Zimbabwe director Nhl-anhla Ngwenya called on government to embrace international best practice by removing the draconian laws.

“Misa-Zimbabwe therefore urges the speedy auditing of laws such as Aippa (Access to Information and Protection of Privacy Act), Broadcasting Services Act, Censorship and Entertainment Controls Act and Interception of Communications Act by the inter-ministerial committee to ensure compliance with the new constitution,” Ngwenya said in a statement last week.

Journalists and media analysts are also demanding the repeal of laws such as the Public Order and Security Act (Posa) and the Official Secrets Act.

Government enacted Aippa in 2002 to govern the operation and general conduct of the media in a way that leaves the media with little breathing space.

All journalists must be accredited by the Zimbabwe Media Commission (ZMC). Foreign journalists — including Zimbabweans not ordinarily resident in Zimbabwe — can be accredited for no more than 30 days. Media institutions and news agencies must be registered by the ZMC, which has the power to refuse and withdraw registration. Foreigners and Zimbabweans not ordinarily resident in Zimbabwe are barred from registering media houses.

Aippa has been used to shut down media houses. In an effort to silence critical media, the Zanu PF government closed the Daily News in 2003 and the Tribune in 2004.

Government has also used Posa to harass journalists. Section 15 of the Act deals with publishing or communicating false statements considered prejudicial to the state.

It makes it a criminal offence for a person inside or outside the country to communicate a statement that is wholly or materially false which promotes public disorder or endangers public safety, adversely affects the defence or economic interests of Zimbabwe, undermines public confidence in the security forces and disrupts any essential services.

This makes the Act very broad and proof that the statement was intended to cause any of the above is enough to bring about a conviction, which carries a fine and or a five-year prison sentence. The law applies not only to mass media, but also to reports produced by businesses and other civil society organisations.

There are also concerns the Official Secrets Act has been used to cover up blunders and improprieties of government. Under the Act, it is an offence to communicate official information unless authorised to do so by a competent authority.

These laws were used by the authorities to target opposition supporters, the independent media and human rights activists, specifically to restrict their rights to assemble freely, criticise government and the president, and to engage in, advocate or organise acts of peaceful civil disobedience.

The Zimbabwe Union of Journalists (Zuj) hailed the Concourt’s criminal defamation ruling.

“The union commends the role played by Standard newspaper editor Madanhire and reporter Matshazi in challenging a law which went against the rights of journalists to disseminate information and that had for long interfered with the work of media practitioners in Zimbabwe,” Zuj secretary-general Foster Dongozi said.

“The ruling by the Constitutional Court can be viewed as a step towards creating an environment where journalists are able to operate professionally and effectively without unnecessary hindrances … There is now recognition that a simple dispute is not solved using police and other tools to harass journalists, but through civilised routes such as the civil one.”

Media activist Matthew Takaona said criminal defamation has been a legal weapon used against press freedom.

“Many stories died a natural death because journalists feared criminal defamation which has been abused for so long,” Takaona said.

“There is need for a complete overhaul of all the laws that hinder press freedom because those in authority have always abused them to punish the media and journalists.”

Analyst Ernest Mudzengi concurred saying in the interest of democracy, which is guaranteed by the constitution, the state should deal with the remaining laws that do not promote freedom of expression.

“All the other laws that are against press freedom should be repealed for the sake of democracy. Democracy requires a free press, freedom of expression and these can only be achieved when all those draconian laws are repealed,” Mudzengi said.

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