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Zimbabwe ConCourt Voids Criminal Defamation

  • Ntungamili Nkomo

The Constitutional Court of Zimbabwe on Tuesday struck down a section of the reviled Criminal Law (Codification and Reform) Act which made defamation a criminal offence.

Handing down judgement in a case brought by the Zimbabwe Independent newspaper and its staffers, Constantine Chimakure and Vicent Kahiya, Justice Luke Malaba said the section breached freedom of expression.

Malaba said the court had “found that the applicants had discharged the onus of showing that Section 31 of the Criminal Code was not reasonably justifiable in a democratic society for the protection of the public interest in public order or public safety.”

"It is ordered that Section 31(a)(iii) of the Criminal (Codification and Reform) Act was in contravention of Section 20(1) of the former Constitution and therefore void."

Justice Minister Emerson Mnangagwa had been ordered in an earlier ruling to show cause - if he so desired - why the law should be preserved.

He was given another opportunity by the same court last month in a similar case brought by former Standard newspaper journalists, Nevanji Madanhire and Nqaba Matshazi.

But “on the return day no affidavit was filed by the minister. What was filed was a lengthy document containing a criminal review of the whole judgment of the court," the court said.

The defendant, Attorney General Johannes Tomana, now National Prosecuting Authority chief, was ordered to pay the costs of the application.

All Supreme Court judges agreed with Mr. Malaba's ruling.

Section 31 of the Criminal Law Act prohibits the publication or communication of false statements with the intention or risk of undermining confidence in the law enforcement agency, Prison Service or Defense Forces of Zimbabwe.

Free press advocates hailed the ruling but were measured in their celebration, saying more hostile laws that violate human freedoms should be removed from the statutes.

"A lot of laws will need to be amended, or repealed or aligned with the new constitution," said Voluntary Media Council of Zimbabwe boss Loughty Dube.

"When that happens, that’s when the freedom of the media will be guaranteed."

Dube’s sentiments were echoed by Edson Madondo of the Media Monitoring Project of Zimbabwe.

But Madondo had a little caveat for journalists: "Journalists will still be sued under civil defamation, so they are still expected to act responsibly, to write accurate stories and verify facts."

Chimakure was jointly charged with Kahiya following the publication of a story that law enforcement agencies had abducted human rights activists including Jestina Mukoko of the Zimbabwe Peace Project in 2008.