In a landmark ruling, Zimbabwe’s Constitutional Court on 22 July 2014 declared unconstitutional a section of the draconian Criminal Law (Codification and Reform) Act which criminalised defamation.
The judgement was in response to a case in which two journalists were charged with criminal defamation after their paper, the Zimbabwe Independent, published a story naming state security agents alleged to have abducted opposition and human rights activists in 2008.
The journalists, Constantine Chimakure, a former editor of the Zimbabwe Independent, and Vincent Kahiya, editor-in-chief Alpha Media Holdings, which owns the title together with The NewsDay and The Standard, as well as online broadcasting platform Heart & Soul, challenged the constitutionality of the law, arguing that it was not reasonably justifiable in a democratic society.
They took the matter to the Constitutional Court challenging Section 31 (a) (iii) of the Criminal Law Codification Reform Act. Section 31 makes the reporting of false news a crime punishable with a high fine and a prison sentence of up to twenty years.
To fall within this provision, the news must be that which would undermine public confidence in the uniformed forces.
In October 2013, pursuant to the former Constitution, the Constitutional Court of Zimbabwe issued a rule nisi. Specifically, the Constitutional Court of Zimbabwe issued a rule nisi that Criminal Law Codification and Reform Act’s Section 31(a)(iii) infringed upon the right to freedom of expression. Under Section 24(5) of the Zimbabwe’s former Constitution, the Minister of Justice, Legal and Parliamentary Affairs (Minister) has the right to persuade the court that Section 31(a)(iii) was justifiable, despite its impact on the right to freedom of expression.
If the Minister is able to show cause, the rule will be “declared to be ultra vires § 20(1) of the former Constitution and accordingly invalid.” The Minister did not exercise this right. Rather, the Minister submitted a document arguing that Section 31(a)(iii) did not infringe upon the right to freedom of expression, instead of arguing for and giving reasons why the law should remain despite its infringement upon this right.
The Minister did not attempt to argue that Section 31(a)(iii) was justifiable or provide factors for the court to consider. The Court noted, however, that 24(5)’s purpose is not to give the Minister, a non-party, the power to review the court’s decisions. Later, a representative of the Minister informed the Court that the Minister would no longer oppose the rule’s confirmation. Accordingly, the Court ordered that 31(a)(iii) of the Act “was in contravention of §20(1) of the former Constitution and therefore void.” Additionally, the Court ordered that the respondent pay for the application’s costs and costs for the rule’s confirmation.
On January 15, 2014 the Minister’s representation indicated that the Minister was no longer wishing to oppose the confirmation of the rule nisi and the order of the court was reversed. The Court ordered that Section 31 (a)(iii) was void since it was in contravention of Section 20(1). Lastly, the Minister was ordered to pay reparations.
Despite the provision being struck off – 10 years ago – government has continued to use the non-existent section to prosecute critics, including journalists.
Opposition activists Job Sikhala and Fadzayi Mahere, as well as journalist Hopewell Chin’ono were charged in early 2021 under section 31 of the Criminal Law Reform and Codification Act with “publishing or communicating falsehoods” after they posted on Twitter a viral video of a woman tussling with a police officer with a motionless baby in her hands in January 2021.
She was arrested and detained for seven days before being granted bail by a Harare magistrate.
Mahere was convicted and sentenced to pay a fine of US$500 for publishing or communicating false statements prejudicial to the state.
She was acquitted of the preferred charge brought by the prosecution of “promoting and inciting public violence” and convicted her only of the alternative charge of communicating false statements.
Sikhala and Chin’ono were also arrested over the issue.
Charges against Chin’ono were quashed by the High Court “because the section under which he was charged is no longer part of our law” in April 2021.
Chin’ono wrote on X (Twitter) at the time: “I was charged using a law that doesn’t exist as part of Mnangagwa’s continued political persecution of myself!”
Sikhala was convicted on charges of “publishing falsehoods” and sentenced to nine months last month.
However, the entire sentence was suspended for five years. Additionally, fine US$500, failure to do so will result in two months of actual imprisonment.
Sikhala said he was appealing.
In the public interest, The NewsHawks publishes the ConCourt judgement.
(1) CONSTANTINE MUNYARADZI CHIMAKURE
(2) VINCENT KAHIYA (3) ZIMIND PUBLISHERS
(PVT) LTD
v
THE ATTORNEY-GENERAL OF ZIMBABWE
SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ,
ZIYAMBI JA, GARWE JA & CHEDA AJA
HARARE, JUNE 3, 2010 & OCTOBER 30, 2013
I Chagonda, for the applicants
T B Zvekare, for the respondent
MALABA DCJ: This is a referral for determination of a question of validity of statutory provisions for the restriction of the exercise of freedom of expression brought to the Supreme Court in terms of s 24(2) of the Constitution of Zimbabwe (“the Constitution”). The question is whether or not s 31(a) (iii) of the Criminal Law (Codification and Reform) Act [Cap. 9:23) (“the Criminal Code”) contravenes the declaration of the fundamental right to freedom of expression under s 20(1) of the Constitution. The section prohibits under threat of punishment the publication or communication to any other person of a false statement with the intention or realising that there is a real risk or possibility of undermining public confidence in the law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe.
The relief sought is a declaration to the effect that the section is unconstitutional and therefore null and void.
The Court apologises for the delay in giving judgment in this case. The delay has been caused by the fact that reasons for judgment in the case of Jestina Mukoko v The Attorney-General SC-11-12 had to be given first. The facts of that case had a direct bearing on the circumstances in which the statements forming the subject matter of the charges which gave rise to the Constitutional questions for determination in this case were published.
The determination of the issues raised in the case of Mukoko v The Attorney-General required time for research and reflection on the interpretation and application of the relevant law.
The constitutional question was raised by the applicants in criminal proceedings in the Magistrates Court. They were charged with having committed the crime of publishing or communicating a false statement prejudicial to the State. Following their request the question was referred by the Magistrate to the Supreme Court for determination in terms of s 24(2) of the Constitution.
The first and second applicants are the reporter and editor respectively of a weekly newspaper called “The Independent” (“the newspaper”). The newspaper is published by the third applicant, a company incorporated in terms of the laws of Zimbabwe. They were jointly charged with the offence of publishing in the newspaper a false statement to the effect that the law enforcement agency abducted people during the period extending from 25 November to 13 December 2008. The allegation was that they published the statement with the intention or realising that there was a real risk or possibility of undermining public confidence in the security service institution.
The period extending from 2 August to 20 November 2008 saw bombs being planted by saboteurs at CID Harare Central Police Station; Manyame River Bridge; Manyame Rail Bridge; CID Headquarters at Morris Depot and Harare Police Station. When the bombs exploded, extensive damage was caused to the bridges and parts of the buildings such as the walls, doors and window panes.
From 25 November to 13 December 2008 a few human rights activists and some members of the MDC-T political party employed in the security department were abducted from different places at different times. The identities of the abductors and places where the abductees were taken remained a closely guarded secret. Except for those who were involved in the planning and execution of the abductions no-one knew what had happened to the people abducted. As a result fear for their lives gripped family members and relatives.
The cases of abduction were widely reported in the print and electronic media. The question of who had kidnapped the people concerned became a matter of public discussion. The law enforcement agency, that is to say, the police and State security agents said that they had no knowledge of who the abductors were and what their motive was. The police said they were investigating what had happened with the view of apprehending the culprits and accounting for the whereabouts of the victims. As the law enforcement agency denied having the abductees in its custody and without communication from the persons concerned, family members and relatives could not invoke the legal remedy of habeas corpus.
On 22 December 2008, after twenty-seven days of forced disappearance, the victims appeared at various police stations in Harare. They had been brought there by State security agents. These people were divided into two groups. The first group was made up of seven people who appeared at the Magistrates Court at Rotten Row on 29 December 2008 in the case of the State v Kisimusi Emmanuel Dhlamini and Six Others. They were charged with the crime of insurgency, banditry, sabotage or terrorism in terms of s 23(1)(i) and (ii) of the Criminal Code. The allegation was that whilst acting in common purpose they planted and ignited the bombs that exploded at the Police Stations, Manyame River Bridge and Manyame Rail Bridge.
The second group was made up of nine people who appeared at the Magistrates Court at Rotten Row on 14 January 2009 in the case of State v Manuel Chinanzvavana and Eight Ors. They were charged with the crime of contravening s 24(a) of the Criminal Code. The allegation was that whilst acting in common purpose, in the months of June and July 2008 they recruited or attempted to recruit or assisted in the recruitment of a former member of the Zimbabwe Republic Police to undergo military training in a neighbouring country in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.
On 31 December 2008 all the accused persons in the first case deposed to affidavits in which they revealed that they had been forcibly abducted by State security agents and members of the police. They alleged in the affidavits that they were taken to Goromonzi Prison where they were held until they were released into the custody of the police.
In the affidavits deposed to on 31 December 2008 and 20 June 2009 Kisimusi Emmanuel Dhlamini gave names of the State security agents and members of the police he alleged abducted him from home on 25 November 2008.
In the second case only Jestina Mukoko raised the question of the violation of the fundamental right not to be subjected to torture, inhuman or degrading treatment. She requested the magistrate to refer the question to the Supreme Court for determination. Reasons for judgment in Jestina Mukoko v The Attorney-General SC-11-12 have since been given. There is uncontested evidence that Jestina Mukoko was abducted from her home at 4a.m. on 3 December 2008 by State security agents.
On 6 April 2009 the respondent served indictments on Kisimusi Emmanuel Dhlamini and Six Others for trial at the High Court on 29 June 2009. The respondent gave notice in terms of s 110(6) of the Criminal Procedure and Evidence Act [Cap. 9:07] that at the trial he intended calling the witnesses whose names he gave. A summary of what each witness would say at the trial was given. The witnesses were members of the law enforcement agency.
After perusing the indictment papers, and the notice the first applicant wrote two articles which the second applicant edited and the third applicant published in the edition of the newspaper for the week beginning 8 May 2009.
The first article was on the front page. It was titled: “ACTIVISTS’ABDUCTORS NAMED”. The story was that:
“The Attorney-General’s Office revealed the names of some members of Central Intelligence Organisation and the police who were allegedly involved in the abduction of human right and MDC activists last November.”
At page two of the newspaper there was the second article. It was titled: “CIO POLICE ROLE IN ACTIVISTS’ ABDUCTION REVEALED”. Under the heading the article stated that:
“Notices of indictments for some of the activists this week revealed the role the CIO and the Police played when the activists were reported missing last year. A perusal of notices revealed that Assistant Director External in the CIO Retired Brigadier Asher Walter Tapfumanei, Police Superintendent Regis Chitekwe and Joel Tenderere, Detective Inspector Elliot Muchada and Joshua Muzanago, Officer Commanding CID. Homicide Crispen Makendenge, Chief Superintendent Peter Magwenzi and Assistant Commissioner Simon Nyathi were involved in some of the abductees’ cases.”
The respondent was of the view that the articles contained false statements about the involvement of the law enforcement agency and its members in the abduction of the human rights activists and members of the MDC-T political party. He concluded that the articles contained statements which were materially false and prejudicial to the State. The respondent authorised the institution of criminal proceedings against the applicants for contravening s 31(a)(iii) of the Criminal Code.
Section 31 falls in the category of offences under the heading: “CRIMES AGAINST THE STATE”. Under the heading is found political crimes such as treason, subversion of constitutional government, insurgency, banditry, sabotage or terrorism and recruiting or training insurgents, bandits, saboteurs or terrorists. Section 31(a)(iii) of the Criminal Code deals with consequences of the publication or communication of a false statement which harms or is likely to harm the interests of the State in the performance of its functions.
The section reads:
“31 Publishing or communicating false statement prejudicial to the State:
Any person who, whether inside or outside Zimbabwe –
Publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of – inciting or promoting public disorder or public violence or endangering public safety; or adversely affecting the defence or economic interests of Zimbabwe, or undermining public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe orinterfering with or disrupting any essential service; shall whether or not the publication or communication results in a consequence referred to in subparagraph (i), (ii), (iii) or (iv) be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding twenty years or both.”
The essential elements of the offence which the State must establish beyond reasonable doubt are:
That the accused published or communicated to another a statement;
That the statement was wholly or materially false in meaning;
That the accused intended to undermine public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe;
Or That the accused realised that there was a real risk or possibility of undermining public confidence in a security service institution referred to in para (3).
Section 31(a) (iii) of the Criminal Code is also important for what it omits. It does not require proof by the State that the false statement undermined public confidence in the security service institution concerned. The State is not required to prove that the accused had knowledge of the falsity of the statement.
Section 34 forbids the institution or continuation of proceedings in respect of the crime against any person without the authority of the Attorney-General except for purposes of remand.
The applicants challenged the constitutionality of s 31(a) (iii) of the Criminal Code on the ground that it contravenes s 20(1) of the Constitution which guarantees freedom of expression. The contention is that the provision is not saved by s 20(2). Section 20 of the Constitution provides:
“20: Protection of Freedom of Expression
Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say freedom to hold opinion and to receive and impart ideas and information without interference and freedom from interference with his correspondence.
Nothing contained in or done under the authority of any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision –
In the interests of defence, public safety, public order, the economic interests of the State, public morality or public health.
…
…”
except so far as that provision or as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”
The applicants do not deny that the right to freedom of expression is not absolute at all times and under all circumstances. They accept that inherent in the exercise of the right to freedom of expression is a duty not to injure the rights of others or the public interests listed in s 20(2) of the Constitution. They argue that the restriction imposed by s 31(a) (iii) of the Criminal Code is an impermissible legislative limitation of the exercise of freedom of expression.
The respondent urges the court to uphold the constitutionality of the provision. He argued that should the court find that the provision contravenes s 20(1) of the Constitution it would be bound by the provisions of s 24(5) of the Constitution to issue a rule nisi to the Minister of Justice and Legal Affairs. In that event, the court would call upon the Minister to show cause why the provision should not be declared to be in contravention of s 20(1) of the Constitution and void before making a declaratory order to that effect. See Re Munhumeso & Ors 1994(2) ZLR 49(S); Retrofit (Pvt) Ltd v PTC & Anor 1995(2) ZLR 199(S); S v Tsvangirai 2001(2) ZLR 426(S).
There is one indivisible freedom for every individual and that is freedom from unwarranted interference by Government. The fundamental rights protected by the Constitution and exercised by the individual are assertions against the State of different aspects of the freedom inherent in every individual as a human being. Freedom of expression asserts the autonomy of thinking, linguistic and communicative elements of the life of an individual and a thin slice of the universe of communication policy.
Section 20(1) of the Constitution defines in broad terms the nature, content and scope of the cluster of rights the enjoyment of which is protected against interference by the Government under the principle of freedom of expression. The respondent does not dispute the fact that liberty of publishing or communicating one’s thoughts, ideas and information expressed in an oral, written or symbolic act to others is essential to the enjoyment of freedom of expression.
There are in fact three dimensions to the process of the exercise of the rights guaranteed by s 20(1) of the Constitution. There is an internal dimension (the formation and holding of opinion, ideas and information); a communicative dimension (the expression of opinion, imparting of ideas and information) and an external dimension (the effect of opinions, ideas and information on the addressee or the audience i.e. on the rights of others or public interests listed in s 20(2) (a) of the Constitution). The guarantee of freedom of expression affects the holding sphere, the communicative sphere and the external sphere. The areas constitute an indissoluble unit.
Protection of the fundamental right to freedom of expression is based on the belief that man is an autonomous and rational agent capable of acquiring knowledge which he or she uses to distinguish right from wrong.
He or she is under a duty to promote the general welfare of the community to the extent that it is not injurious to his or her own lawful interests.
Freedom of expression is defined not only in terms of the protection of the right to hold opinions but also to receive and impart ideas and information without interference.
What is protected by the right is not only the benefits of the communicative process but also the effects the dissemination of ideas and information has on the audience including public interests.
