THE Zimbabwe chapter of the Media Institute of Southern Africa (Misa-Zimbabwe) and four local journalists yesterday filed a constitutional application with the Constitutional Court (ConCourt) seeking an order declaring criminal defamation unconstitutional in terms of the new Constitution.
BY CHARLES LAITON /BLESSED MHLANGA
The application was filed by Harare lawyer Chris Mhike on behalf of Misa-Zimbabwe and the four journalists Nqaba Matshazi, Sydney Saize, Godwin Mangudya and Roger Deane Stringer.
The applicants argued that Section 96 of the Criminal Law (Codification and Reform) Act was unconstitutional as it clashed with Sections 61 and 62 of the Constitution and should be struck off.
Sections 61 and 62 protect the right to freedom of expression, media freedom and access to information.
Both Matshazi, of Alpha Media Holdings, and Stringer (independent media consultant) have been victims of the criminal defamation law.
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They cited Justice, Legal and Parliamentary Affairs minister Emmerson Mnangagwa, who is also the Vice-President of Zimbabwe, Minister of Information, Media and Broadcasting Services Jonathan Moyo and Attorney-General Prince Machaya as respondents.
“It is now internationally and domestically recognised that freedom of expression and freedom of the media, as read with the right to access of information, are extremely important to the proper functioning of any credible democracy,” the applicants said.
“Resultantly, any law, practice or administrative arrangement that curtails these rights must be impugned, if not outlawed.”
The application comes barely a week after the ConCourt ruled that the law had only been struck off in terms of the old Constitution.
Last Thursday, Justice Bharat Patel issued the declaration order concurring with Mnangagwa’s submissions that judgment in the case of former Standard journalists Nevanji Madanhire and Matshazi was only made in the context of the old Constitution.
Meanwhile, a constitutional law expert has said it was an erroneous to declare that the criminal defamation law was somehow invalid only under the old Constitution.
Kent University law lecturer Alex Magaisa said such a decision was fundamentally flawed at law.
He questioned why the court dealt with a matter that had not been placed before it even after the Minister of Justice, Vice-President Mnangagwa, had agreed with the courts that criminal defamation had no place in a democracy.
“How could provisions that the court had just outlawed under the old Constitution be said to have the possibility of being legal under the new Constitution? If the court found that criminal defamation was outlawed under the old Constitution, on what basis did it have to venture to suggest that the provisions could be legal under the new Constitution when that question was never placed before it?” he wrote.
Magaisa said it lacked logic to try and revive the criminal defamation law under the new Constitution because it would create an absurd situation in which all laws previously declared dead under the old Constitution could be legitimately invoked under the new Constitution.
“If the court has declared a law to be unconstitutional in terms of the old Constitution, on what basis can the same provisions be revived so that they have to be tested again under the new Constitution?” he queried.