Has the Constitutional Court of Zimbabwe ended criminal defamation in it’s latest judgment?
It is unfortunate that the media reports on the recent judgment of the Constitutional Court in Chimakure v The Attorney General of Zimbabwe Case No 247/09, handed down on 22 July 2014, have been misleading.
Some sectors of the media have construed the import of the judgment to mean that the dreaded criminal defamation law has been struck off the statute books. Unfortunately, this couldn’t be further from the truth.
Firstly, it is important to note what the case was not about. The case was not about the constitutionality of criminal defamation as defined in section 96 of the Criminal Law (Codification and Reform) Act [Cap 9:23] (Criminal Law Code). Briefly, the offence of criminal defamation in section 96 of the Criminal Law Code provides:
“(1) Any person who, intending to harm the reputation of another person, publishes a statement which –
(a) when he or she published it, he or she knew was false in a material particular or realised that there was a real risk or possibility that it might be false in a material particular; and
(b) causes serious harm to the reputation of that other person or creates a real risk or possibility of causing serious harm to that other person’s reputation;
shall be guilty of criminal defamation and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding two years or both”.
The Chimakure case was not about the constitutionality of criminal defamation as defined above. Rather, the case was pursuant to an interdict (rule nisi) issued by the same court in October 2013, where it had invited the Minister of Justice, Legal and Parliamentary Affairs to show cause why section 31(a)(iii) of the Criminal Law Code should not be declared outside the scope (ultra vires) of s 20(1) of the now extant Lancaster Constitution. Section 31 (a) (iii) reads:
“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 . . . be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding twenty years or both.”
Thus, the court in Chimakure held that the law was not reasonably justifiable in an open and democratic society. Deputy Chief Justice Luke Malaba penned the ruling, and ordered that s 31(a)(iii) of the Criminal Law Code was in contravention with the former Constitution and therefore void. Chief Justice Godfrey Chidyausiku and Justices Vernanda Ziyambi and Elizabeth Gwaunza all concurred in the judgment.
Contrary to media reports, the constitutionality of section 96 of the Criminal Law Code was canvassed in the recent judgment of the Constitutional Court – Madanhire v Attorney General. However, the constitutionality of the impugned provision was considered in terms of the former constitution. Patel JA, writing for the full bench in Madanhire held that the offence of criminal defamation as prescribed in section 96 of the Criminal Law Code was not reasonably justifiable in a democratic society. Thus, it was inconsistent with the freedom of expression as guaranteed by section 20(1) of the former Constitution.
Interestingly, Patel JA noted that that case was not about the constitutionality of criminal defamation in the new Constitution. The Honourable Justice merely noted that the freedom of expression and freedom of the media in the new Constitution were couched in different terms from the former Constitution. Thus, according to the Justice, there was room to argue that the offence of criminal defamation was a justifiable limitation on the freedom of expression in the new Constitution. Patel JA, however, hastily noted that these matters were for consideration when an appropriate case was brought before the Constitutional Court.
The former Constitution had section 24(5), which provided that where the court found that an impugned provision contravened a section under the ‘Bill of Rights’ it had to issue an interdict (rule nisi) calling upon the responsible Minister to show cause why that provision should not be declared to be in contravention with the concerned section. It is on this basis that Patel JA called upon the Minister of Justice, Legal and Parliamentary Affairs, to show cause why section 96 of the Criminal Law Code should not be declared outside the scope (ultra vires) section 20(1) of the former Constitution.
In sum: the offence of criminal defamation remains part of our statute books until the rule nisi issued in Madanhire & Others v Attorney General is confirmed. As to when this will be done is unknown because the court did not issue a timeframe within which the Minster should respond to the rule nisi.
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