Daniel Nemukuyu Senior Court Reporter—
Government’s response to a Constitutional Court bid by the Media Institute of Southern Africa (Misa) to get criminal defamation struck down was mired in controversy last night after the Attorney-General disowned it. The mystery deepened with Information, Media and Broadcasting Services Minister Professor Jonathan Moyo — cited as a respondent in the MISA application — saying he had not been consulted by Government lawyers and was “very surprised and disappointed to learn that opposing papers have been filed on my behalf.”
The Government, in papers purportedly filed by the AG, defended criminal defamation, arguing that “it fosters responsible journalism”.
But Prof Moyo said he was shocked to learn the opposition had also been filed on his behalf, when he personally considers criminal defamation a “dead law”.
“Nobody in the AG’s office discussed the case with me. I hope there’s no mischief at play here, but something is fishy,” the minister said in a brief statement last night.
Attorney-General Prince Machaya, barely two-weeks-old in the job, yesterday said he had not had sight of legal papers purportedly filed by him in defence of the two ministers.
“I don’t know, it’s the Civil Division isn’t it?” Machaya said. “It’s the Civil Division that files papers. I haven’t seen them. I don’t know maybe you can call me tomorrow not now.”
Prof Moyo added: “My position is very clear and is in the public record. The Constitutional Court has declared in a 2012 case that criminal defamation is inconsistent with and in contravention of the former Constitution of Zimbabwe. This means that it is a dead law which cannot be resurrected by the new Constitution.
“For this reason, it is my considered view that the court application that seeks to have a dead law declared null and void in terms of the new Constitution is itself dead and thus ill-conceived. There’s no need for such an application.”
Prof Moyo also took aim at Misa, saying he could not understand why he had been made a respondent in the case “because I don’t administer the criminal defamation law.”
In the papers filed with the Constitutional Court, Machaya contested Misa’s bid to have Section 96 of the Criminal Law Codification Reform Act struck off from the statutes, allegedly because it is in violation of the right to freedom of expression and the media as guaranteed under Section 61(1) and (2) of the Constitution.
Machaya argued that from another angle, criminal defamation was a necessary evil.
“What Section 96 of the Criminal Code, therefore, seeks to do is to guarantee and protect the right to dignity,” he said. “It is not in violation of Section 61(1) and 61(2) of the Constitution.
“Section 96 of the Code fosters responsible journalism and ensures, therefore, that in exercising their right to freedom of expression and freedom of the media, journalists verify their facts prior to publication as being truthful.”
Criminalising defamation, Machaya argued, was the best way to protect every citizen from intentional and malicious injury to character.
“Section 96 of the code, by criminalising intentional harm to the reputation of another, is, therefore, in compliance with the provisions of Section 61 (5) (c) of the Constitution,” he said.
“Freedom of expression and freedom of the media do not include malicious injury to the reputation or dignity of another. The only way the State can guarantee protection of the inherent right to human dignity is by criminalising any conduct that causes malicious injury to another person’s reputation or dignity.”
Machaya said under the law in question, journalists should only be arrested where there was proof of intention to harm.
“Where genuine errors are made in the communication process, journalists cannot be charged with the crime of criminal defamation because there is lack of intent to cause harm,” he said.
“However, where there is intentional harm to reputation, then there is every need to attach criminal sanctions to such harm.”
Adv Machaya said although there were civil remedies for defamation, criminal defamation appeared to be a faster route.
“Civil remedies are long and protracted,” he said. “Criminal defamation guarantees a quicker remedy to one whose reputation has been injured.
“Intentional injury to a person’s reputation causes a permanent life scar to one’s personality and dignity and it should equally be sanctioned with a speedy legal remedy.”
Meanwhile, the Constitutional Court has given the State up to 30 days to file its detailed argument to show why criminal defamation should not be struck down in a case in which former Standard journalists Nevanji Madanhire and Nqaba Matshazi were being accused of defaming Dr Munyaradzi Kereke.
The Constitutional Court last year ruled that the law was in breach of Section 20(1) of the former Constitution (freedom of expression), but the same court did not make any declaration in relation to the new Constitution.