IT is not uncommon to overly celebrate an ounce of victory in one battlefront while clouding the extent of the war to be fought and hazards lying ahead.
This is often the case when that victory is an outcome of years of struggle which bore mayhem and scores of casualties. But the danger is that unrestrained celebrations tend to refract the scale of the challenges to be confronted and detract one’s strategic trajectory in winning other battles for complete triumph.
The media’s coverage of recent Constitutional Court (ConCourt) rulings is testament to this human frailty.
Since the ConCourt ruling of October 30 2013, which adjudged insult laws and criminalising publication of falsehoods to be antithetical to democracy, to the recent July 2014 ruling that re-affirmed the October judgment, the media — rightfully so — went hysterical in celebrating the developments.
In the process they fed their audiences with celebratory reports whose consequence has been to mislead the public on the full import of the rulings and their effect on the prevailing laws that criminalise freedom of expression, including media freedom.
While the rulings undoubtedly provide a critical legal precedence upon which robust challenges of the country’s repressive expression laws could be successfully mounted under the new constitution, the judgments did not automatically invalidate the existing legislative framework as the media have projected. A closer reading of the judgments illustrate this.
For instance, in its final judgment on July 22, 2014 in the case of Constantine Munyaradzi Chimakure, Vincent Kahiya, Zimind Publishers (Pvt) Ltd versus Attorney-General of Zimbabwe, the ConCourt restated its ruling of October 30, 2013 on the same matter that found Section 31(a)(iii) of the Criminal Law (Codification and Reform) Act (Code) to impinge on the right to freedom of expression and unjustifiable in a democratic society.
The section stipulates that “any person who whether inside or outside Zimbabwe publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of … undermining public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe … shall be guilty of publishing or communicating a false statement prejudicial to the state …”
The sanction for this offence is US$5 000 fine or a maximum of 20 years in prison or both. The ConCourt re-affirmed its October judgment after the Ministry of Justice, which was ordered to show cause why the provision was not in conflict with the old constitution, failed to do so.
While the ConCourt made valuable legal observations on the harmful effects of the provision in the exercise of freedom of expression, this was in the context of the old constitution. In other words, though the court was unequivocal on the undesirability of such a provision in a democratic society, it steered clear of adjudging the justifiability of the law under the new constitutional dispensation.
Against this backdrop, it would be gross misinterpretation of facts for the media to easily conclude that the courts have invalidated the provision thereby taken it off existing statutes as they wanted the public to believe.
Earlier, the media similarly reported the ConCourt ruling on criminal defamation in June 2014 as having brought finality to the applicability of criminal defamation in the country, again convoluting the implications of the ruling and misleading the public.
The ruling followed a constitutional challenge filed by Standard journalists Nevanji Madanhire and Nqaba Matshazi following their arrest under the criminal defamation law on November 6 2011. In delivering the ruling on behalf of the ConCourt, Justice Patel concluded:
“Having regard to all 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. Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation.
“Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. In short, it is not necessary to criminalise defamatory statements. Consequently, I am satisfied that the offence is not reasonably justifiable in a democratic society within the contemplation of Section 20(2) of the former constitution. Accordingly, it is inconsistent with the freedom of expression guaranteed by Section 20(1) of that constitution.”
Although the court was unambiguous on the undemocratic nature of criminal defamation, it again based its ruling on the old constitution and not the new constitution. In fact, while it advised the Justice ministry to show cause why criminal defamation was in sync with the old constitution “on the earliest available date”, it appeared to suggest that there were grounds on which the state could retain criminal defamation under the new constitution.
It observed that while the constitutional court is still to test criminal defamation against the new constitution, the state could still argue for the retention of the law based on Articles 51 and 86 of the constitution. Article 51 provides for the respect and protection of individual dignity while Article 86 stipulates grounds upon which freedoms granted under the Bill of Rights could be limited.
Justice Patel observed:
“Having regard to these provisions, taken together, it is arguable that the freedom of expression conferred by Section 61 is to be more narrowly construed as being subordinate to the value of human dignity. It might also be argued that the offence of criminal defamation is a justifiable limitation on the freedom of expression as envisaged by Section 86 of the new constitution.
“In any event, as I have said, these are matters for argument and consideration as and when an appropriate case is brought for determination before this court.”
The media allowed these conflicting arguments from the same court to pass without thorough scrutiny, which would have helped inform the public on the meaning of the judgment with regards media freedom.
More importantly, the court’s observation that the right to freedom of expression could be subordinated to other civil liberties, contrary to international human rights law that considers all rights to be equal, and that freedom of expression could be limited under the same constitution should have prodded the media to further examine the ruling vis-a-vis the legal challenges that still confront the media.
Granted, the ruling resulted in the subsequent acquittal of Daily News staffers Stanley Gama and Fungi Kwaramba who were arrested early this year facing criminal defamation charges over a different matter, but this does not mean criminalisation of defamation was automatically struck off the statutes.
Clearly, as the ConCourt judgment demonstrates, there are still potential legal battles to be fought before the law could be repealed.
And until such a time there is holistic review and repeal of the country’s repressive expression laws in accordance with the new constitution, the old despotic legislative instruments will continue to hover over the heads of journalists and Zimbabweans sending a chilling effect in the exercise of their rights.
Indeed, while the establishment of the ConCourt under the new constitution and its judgments offer the requisite last line of defence for media practitioners, the mere fact that journalists can still be arrested and summoned to police stations under the old legislative environment is still a major cause for concern.
It doesn’t matter if they are then subsequently acquitted by the courts, the intimidatory and chilling effect of being summoned by the country’s feared law enforcement agents cannot be relieved by a court’s intervention several months down the line. The damage would have already been done!
It is only through adequate and unambiguous legislative safeguards that the media can exercise their enterprise and it is the media themselves that can influence the adoption of such reforms. They therefore should stay the course in the fight for a complete overhaul of the country’s media legislative framework and avoid interpreting steps in a long journey to mean arrival.
This is because their operational space is still littered with laws that can still be used to criminalise their work in the same manner and force as the laws they have erroneously celebrated as now invalid.
Ngwenya is the director of Media Institute of Southern Africa-Zimbabwe.