The Constitutional Court of Zimbabwe on Thursday declared criminal defamation unconstitutional, saying it should be scrapped off the statutes as it violates freedom of expression and other democratic principles.
The court made the determination in a matter brought by two then-Standard newspaper journalists Nevanji Madanhire and Nqaba Matshazi after they were charged with defaming Munyaradzi Kereke in a criminal fashion.
This was after the newspaper published a story alleging that Kereke's Green Card Medical Aid Society was facing financial hardships and failing to pay its employees.
The court's justices were unanimous in their ruling, saying Matshazi and Madanhire had “succeeded in demonstrating that the offence of criminal defamation is not reasonably justifiable in a democratic society.”
"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," wrote Justice Barat Patel on behalf of the court's full bench.
"Accordingly, it is inconsistent with the freedom of expression guaranteed by Section 20 (1) of that Constitution.
"I take the view that the harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect."
The court ordered Justice Minister Emmerson Mnangagwa to show cause why the charge of criminal defamation should not be scrapped if he does not agree with the ruling.
Criminal Defamation, contained in the notorious and widely reviled Criminal Law (Codification and Reform) Act, has been used by influential individuals and government officials in Zimbabwe to silence the press, resulting in the arrests of dozens of journalists.
But the court came out swinging in defense of press freedom, strongly objecting to the harassment of journalists for exposing corruption and carrying out investigative work.
“It cannot be denied that newspapers play a vital role in disseminating information in every society, whether open or otherwise,” the court said.
“Part and parcel of that role is to unearth corrupt or fraudulent activities, executive and corporate excesses, and other wrongdoings that impinge upon the rights and interests of ordinary citizens.
"It is inconceivable that a newspaper could perform its investigative and informative functions without defaming one person or another. The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain.
"This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.”
Reacting, Matshazi, currently studying in England, said he was “over the moon.”
“It’s quite thrilling that the law should be struck off as it has been deemed unconstitutional. I am over the moon, I am excited,” said Matshazi who wrote the Kereke story in 2011. Madanhire was his editor.
But Matshazi was measured in his exhilaration, observing that several other laws that violate press freedom, including POSA and AIPPA were still in place and posing real danger to journalists.
“It’s not the end of it all, the fight for freedom of expression should continue,” he urged.