MISA Zimbabwe files constitutional application against criminal defamation
MISA Zimbabwe and senior Zimbabwean journalists on filed an application with the Constitutional Court on 25 February 2015 seeking an order for criminal defamation to be declared unconstitutional in terms of the new Constitution.
In its application filed by lawyer Chris Mhike, MISA Zimbabwe argues that section 96 of the Criminal Law (Codification and Reform) Act 2004, is unconstitutional, as it does not comply with sections 61 and 62 of the Constitution, and should therefore be struck off.
Sections 61 and 62 protect the right to freedom of expression, media freedom and access to information.
MISA Zimbabwe is the first applicant while journalists Nqaba Matshazi, Sydney Saize and Godwin Mangudya are the second, third and fourth respective applicants in the matter. The fifth applicant is Roger Deane Stringer, an independent publishing consultant.
Matshazi and Stringer have been victims of the law in question.
The Minister of Justice, Legal and Parliamentary Affairs, Emmerson Mnangagwa, who is also the Vice President of Zimbabwe, Minister of Information, Media and Broadcasting Services Professor Jonathan Moyo and Attorney General Prince Machaya are the respondents.
The respondents have 10 days within which to file a notice of opposition and one or more opposing affidavits if they intend to oppose the application.
In its application, MISA Zimbabwe argues that if the law in question was declared unconstitutional under the old Constitution, there is even greater justification for it to be struck off in terms of the new Constitution. This is because the provisions for freedom of expression and media freedom under the old Constitution were even “weaker or narrower” compared to the ones protected under the new Constitution.
“It is now internationally and domestically recognised that freedom of expression and freedom of the media, as read with the right to access to information are extremely important to the proper functioning of any credible democracy,’ the application reads.
“Resultantly, any law, practice or administrative arrangement that curtails these rights must be impugned, if not outlawed.”
The application comes hard on the heels of last week’s ruling by the Constitutional Court that criminal defamation is still operative and that the law in question had only been struck off in terms of the old Constitution.
Constitutional Court judge Justice Bharat Patel issued the declaration order on 19 February 2015 concurring with Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa’s submissions that judgment in the case of former Standard journalists Nevanji Madanhire and Nqaba Matshazi was only made in the context of the old Constitution.
In June 2014, Madanhire and Matshazi successfully applied for permanent stay of prosecution on charges of contravening section 96 of the Criminal Law (Codification and Reform) Act 2004.
The finding was made on 12 June 2014 in a Constitutional Court judgment delivered by Justice Bharat Patel, with the full concurrence of Chief Justice Godfrey Chidyausiku and Justices Malaba, Ziyambi, Gwaunza, Garwe, Gowora, Hlatshwayo and Guvava, in terms of Section 20(1) of the former Constitution, which dealt with freedom of expression.
The clarification means that journalists and Zimbabwean citizens, pending outcome of the MISA Zimbabwe application, can still be prosecuted for criminal defamation.
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The Media Institute of Southern Africa (MISA) was founded in 1996. Its work focuses on promoting, and advocating for, the unhindered enjoyment of freedom of expression, access to information and a free, independent, diverse and pluralistic media.
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