The recent and historic Constitutional Court (ConCourt) judgment outlawing criminal defamation is significant for freedom of expression and media freedom in Zimbabwe. Not just because its immediacy frees journalists to operate without fear of arrest and possible jail time if convicted for what they write. It also has a broader impact for ordinary citizens’ right to express themselves, especially on political and social issues, without having to fear being reported to the nearest Zimbabwe Republic Police (ZRP) station.
Takura Zhangazha Media Activist
But this exception is still only for publishing issues that someone (in all likelihood a politician or influential public official), deems damaging to their reputation. There has been no recent constitutional case on the issue of publishing stories/views/news on national security, an issue that government, via the Ministry of Media, Information and Broadcasting Services (Mibs) has been raising. How it eventually pans out is dependent largely on the ability of government, media stakeholders, and ordinary citizens to review definitions of national security.
This also means that there are other laws (such as the Official Secrets Act) that can still lead to the arrest of an individual for what they publish if it is deemed harmful to national security. Other laws in relation to media regulation also remain in place, particularly where one practices journalism without accreditation/licensing from the Zimbabwe Media Commission (ZMC).
So the judgment against criminal defamation has occurred within a somewhat still complex media law framework. It is one that includes the progressive fact that no one can go to the police and report defamation of reputation, especially by journalists, in order to prefer arrest and criminal charges. Simultaneously, the regulation of the media contains within it liability for criminal charges for practicing journalism without the relevant state sanctioned accreditation.
This essentially means while we are no longer subject to criminal charges for publishing what may amount to defamatory statements or news, we unfortunately remain liable to criminal charges for publishing the truth.
But there are other challenges that will affect the appreciation of the significance of this ConCourt judgment outlawing criminal defamation.
The first is that though the case in its initial stages was over and about criminal charges sought against the then editor of the Standard newspaper Nevanji Madanhire and now current NewsDay deputy editor Nqaba Matshazi in November 2011 against Section 96 of the Criminal Codification and Reform Act.
This recent judgment does not only make the work of journalists easier, it removes the police from being the initial port of call for a person who feels a story written about them has been defamatory. Essentially this means no more nights in cold police cells for journalists on the basis of their stories being considered defamatory. Those with complaints will have to try the civil court or Voluntary Media Council of Zimbabwe (VMCZ) route.
The important catch for journalists and media owners however is that there shall be increasing pressure to ensure that the profession adheres to a somewhat strict code of ethics and conduct. The current code of ethics as established consultatively via the VMCZ and its key stakeholders should suffice. This includes the overall mechanisms of redress such as the publication of retractions with equal and clear prominence.
But even before such complaints are considered, as they will, the better option is for journalists and media owners to be professional. Failure to do so will initially give government or the public reason to assume that ever since the judgment was issued, the media has been functioning with impunity because there is no possibility of criminal defamation charges.
This is also to be taken within the context of the increased reach of mainstream media into the social media sphere as a result of technology. As such the task will also fall on those that manage the multimedia platforms that have been established in the wake of the expansion of internet access and the creation of a mobile media market. Even bloggers and social media platforms independent of the mainstream will also have to adhere to some sort of ethical code in order to keep a still eager state at bay.
A key danger, where and when the media fails to act concertedly in pursuit of strengthened ethical considerations however is the fact that the state still has the ZMC to act in relation to fines and in part criminal charges for violating a given media code of conduct. This means it can still fine or close media houses where it legally finds reason to do so. While the matter of the nature and extent of fines in relation to media sustainability has only been debated where it concerns annual levies due to the ZMC, this will probably expand to actual media conduct via a statutory media council.
Furthermore, there is the potentially debilitating end effect of civil damages lawsuits to media houses that can lead to the potential bankruptcy of media houses and individuals associated with them. And depending on whether a media house is a multimedia one, that is broadcasting and print, it will be subject to multiple regulatory frameworks that currently obtain in relation to not only the ZMC, but also the Broadcasting Authority of Zimbabwe. Both of which do have locus standi to either close, fine or undertake both in relation to media houses.
As one of the primary applicants in the ConCourt judgment against criminal defamation, Misa Zimbabwe has already argued, there is still therefore a long way to go in relation to democratic reforms of current media laws and the existent culture of impunity against the media.
More importantly there is the key factor of the full import of the judgment on the ordinary citizen’s right to express their opinions.
Particularly via expanding mobile telephony and social media applications. Over the years, there have been a number of arrests of citizens who have used the WhatsApp social media application to send humourous content concerning either a component of the security services or the office of the president. These cases have been key in creating a culture of fear of expressing views on those that are influential or powerful in our society.
In the aftermath of the judgment, it is reasonable to assume that an ordinary citizen will not be arrested for “undermining” or defaming one authority or the other via way of what they post on social media. They may be sued in civil court but will not have to go to jail.
The major challenge, however, is that many citizens are not necessarily aware of this judgment and its full import. Even if they become aware, it will still be a herculean task to ensure a decrease in the culture of fear of politics that informs many a human rights activist in the exercise of their right to freedom of expression.
This is a point that the media needs to take into account. If the citizen regards freedom of expression as the special preserve of the journalist, the former is least likely to act in defence of the latter. What is therefore required is a new collaborative effort on the part of the media, civil society and citizens to ensure that this judgment begins a new chapter in how the cornerstone democratic value of freedom of expression and the media becomes intrinsic to our country’s political culture. This must also be juxtaposed with other rights such as those of the right to privacy of individuals but not be mixed up in politicised perceptions of national security or national interests.
Defining the latter is always going to be a difficult task, but the key element must be a democratic consensus that it is in the best national interest that all views be allowed to be heard, debated and where they are irrelevant, they do not lead to anyone getting arrested for them. They may lead to civil lawsuits but should not lead to criminal charges.
In conclusion, the ConCourt judgment will always be a positive historic milestone for journalists, the legal profession and our struggling democracy. Its aftermath is, however, a much more difficult proposition. Government will not dispute its veracity, but some within government will seek to define its full import with regards to how the media profession is regulated. For this they will use the constitutionally provided for ZMC.
It will also assume that this judgment, though applying to not just journalists but also ordinary citizens will not expand in democratic meaning unless someone is brought to court. And that is the new challenge for journalists, media owners, government, civil society organisations and ordinary citizens have to contend with going forward. The cornerstone rights to freedom of expression, access to information and media freedom may be set for brighter days. Or they could be set for greater battles in relation to defending them where they matter most which is with the people of Zimbabwe.
Zhangazha writes here in his personal capacity. — takura-zhangazha.blogspot.com