By: Alison Graham, IPI
Zimbabwe court rules criminal defamation unconstitutional
Expert speaks with IPI about implications for Zimbabwe, Africa
By: Alison Graham, IPI
VIENNA, June 18, 2014 – Zimbabwe’s Constitutional Court ruled on June 12 that the country’s criminal defamation law violates a constitutional safeguard on freedom of expression.
The ruling came in a case against two journalists charged with criminal defamation following a complaint by Munyaradzi Kereke, a member of the ruling Zanu PF party.
Kereke filed the complaint in 2011 against Nevanji Madanhire, editor of The Standard, and reporter Nqaba Matshazi in connection with an article he claimed contained false information about the Green Card Medical Aid Society, a hospital founded and owned by Kereke, who serves as its chairman.
The article, which The Standard published on Nov. 6, 2011, reportedly stated that Kereke’s hospital was unable to pay its members and staff, and was going bankrupt.
Later that month, Madanhire and Matshazi were arrested and released on bail, facing charges of criminal defamation.
The journalists challenged their prosecution, arguing that Zimbabwe’s criminal defamation was unconstitutional. On June 12 the full bench of Zimbabwe’s Constitutional Court unanimously agreed.
“It is not necessary to criminalise defamatory statements,” the Court said in its ruling, Reuters reported. “Accordingly, it is inconsistent with the freedom of expression guaranteed by (the) constitution.”
The Court also indicated that defamation cases should be brought in front of civil courts.
The Court invited Zimbabwe’s justice minister to show cause why the Court should not strike the law down, but local observers expressed hope that last week’s decision would stand.
The International Press Institute (IPI)’s Alison Graham spoke with Justine Limpitlaw, a South African legal expert and communications law consultant in Johannesburg, about the Harare court’s ruling and the state of press freedom in Zimbabwe.
The author of the Media Law Handbook for Southern Africa, Limpitlaw has been pushing to decriminalise defamation and insult laws in southern Africa in a campaign spearheaded by African Union Special Rapporteur on Freedom of Expression and Access to Information in Africa Pansy Tlakula, bringing together organisations across the continent.
In an April 14 interview, Limpitlaw told IPI she was “horrified” how little awareness there is about colonial-era regulations that affect reporters and editors.
She shared the following thoughts about the developments in Zimbabwe by email yesterday.
IPI: How surprising was Zimbabwe’s decision to you and the rest of the country?
Justine Limpitlaw: I am not based in Zimbabwe so I can’t say whether or not the decision was a surprise in Zimbabwe. It certainly did come as a surprise as there had been little press coverage in South Africa that this issue was coming up. The Supreme Court does not have a particularly good record on human rights matters although this does appear to be changing, so the fact that it made this progressive decision was unexpected and very welcome.
IPI: What immediate effects could this have on Zimbabwe?
JL: It is important to note that this is not a final judgment, this is a ruling that the minister of Justice is required to appear before the court and argue why the criminal defamation provision should not be struck down as being unconstitutional. Only if, after the second hearing, the final judgment is a declaration of invalidity for violating the constitution, would the provisions be finally struck down. So it is premature to celebrate at this stage.
IPI: What other press freedom issues does Zimbabwe need to work on?
JL: Gosh, there are many to list.
1. The need for the opening up of the airwaves for commercial and community media.
2. The need to transform the state broadcaster into a public broadcaster.
3. To repeal a vast array of laws that criminalise or otherwise limit expression, including: laws requiring registration of newspapers, journalists; laws that criminalise false news, insult and sedition.
4. In Zimbabwe there are also a host of security laws, still on the statute books from Rhodesia’s Smith regime, that limit the right to freedom of expression and which need to be updated in line with international norms and standards.
IPI: What kind of effects could this have on other African countries?
JL: As I said it is important to wait until the return date to see what the court finally decides, but if this is struck down it will be very significant, particularly if the African Court of Human and Peoples’ Rights also strikes down the criminal defamation laws of Burkina Faso for being contrary to the African Charter (judgment in that case is expected soon). The decriminalisation of expression campaign (spearheaded by ADV. Pansy Tlakula, African special rapporteur for freedom of expression and access to information) will certainly try to encourage other countries and/or courts to follow suit so that it becomes a continent-wide trend in favour of freedom of expression.
IPI: What other countries do you foresee taking a step like Zimbabwe’s?
JL: Well it is still early, but Malawi has a decriminalisation bill before Parliament already so there is hope.
IPI: How likely is it that the government will contest the court’s decision?
JL: I have no idea about that, but the Minister of Information, Mr. Moyo, recently publicly stated that criminal defamation laws ought to be repealed and so hopefully this reflects the government’s position but it seems that the ruling party is fairly fractured so it is not clear if Minister Moyo reflects governmental policy in this regard.
IPI: How soon will we know that decision?
JL: When the papers are filed for the next court date.
IPI: What other comments do you have on the situation?
JL: That there is a real momentum gathering and overseas governments ought to be encouraging African governments to move on decriminalising freedom of expression as there is a clear correlation between a free media and the reduction of extreme poverty and increasing development. This is important for governments but, more importantly, for ordinary African people who deserve the basic respect of their fundamental right to freedom of expression and to receive information from a free media.
Contact: Alison Graham at +43150120911 or by email