Defamation a civil matter

LONDON - With another commemoration of independence a few days away, one of the biggest ironies of transition from colonial rule has been the retention of suppressive legal instruments of the past.

If that was remarkable, the addition of our own stifling legal tools like the Access to Information and Protection of Privacy Act (Aippa) was even more treacherous to the freedom that independence presupposes.

Until about two years ago when a new constitution was introduced, the preceding document had been subjected to repeated patchwork that failed to reflect a clean break with the past.

Still, the new charter belies a deep-seated reluctance to surrender oppressive instruments of yesteryear. Laws remain unaligned to the new constitution.

Justice minister Emmerson Mnangagwa’s defence of the law of “criminal defamation” shows that black power may not be so different from white power.

When people ascend to power, they, almost invariably, attempt to use instruments at their disposal to protect their interests. One such instrument is the law.   

Scholars of the Marxist tradition perceive the state, which formulates law, as representative of ruling class interests. This class also serves the wealthy it is connected to.

Laws, thus, reflect the interests of the bourgeoisie; those who own and control the means of production.

Like Zimbabwe, many countries still have criminal defamation on their statutes.

In all these countries, however, criminal defamation has become an unpopular law because it is used by the ruling class and its powerful associates to suppress freedom of expression.

It is, perhaps, because of this utility that Mnangagwa was defiant. Unlike information minister Jonathan Moyo, Mnangagwa does not speak of repealing the law or realigning it with the new constitution.

“We have the criminal defamation law which we shall continue to use as it is part of our law. Journalists must learn to be accountable and responsible for their actions and must be answerable. They can approach the Constitutional Court to have it struck down. Until they have done so, we shall continue to use it.

“These journalists expect government to be accountable without themselves being accountable and this is not the way we operate.”

No one disputes the fact that journalists should be accountable to the law. Notwithstanding the fact that the Zanu PF regime itself is barely accountable, a particular section of the media has been subjected to this law by the government.

About 12 years ago, while working for this paper, I was charged with criminal defamation for reporting that relatives of victims of Zanu PF violence were suing President Robert Mugabe in the United States of America (US) as a symbolic gesture.

The matter did not go any further; it would proceed by “way of summons,” we were told. Unsurprisingly, the summons never came.

Several other journalists have had almost a similar experience over the years. And as far as I know, no local journalist has been convicted of the “crime.”

One can plausibly conclude that criminal defamation is an instrument designed to harass the media in the name of the high and mighty.

Moyo’s view — whose epiphany continues to surprise — reflects this Marxist angst about the law. It cannot be right, he intones, that the work of the police “should include investigating whether so-and-so in the media has told a defamatory lie against so-and-so among the rich or influential in high society.”

He is right; criminal defamation should remain a civil matter.

The protection of ruling class interests, through draconian law, is antithetical to the very essence of the independence we mark again this week, which should include freedom of the media and expression.

Disturbingly, Mnangagwa does not acknowledge that criminal defamation breaches the new Constitution. Rather than take the initiative to expunge the law, he would rather have journalists challenge it in court.

Chapter 9:23 of Section 96 of the Criminal Law (Codification and Reform) Act should simply be repealed without journalists litigating against it because it is ultra vires the new constitution.

Comments (2)

so imagine if mnangagwa was to succeed bob?

steve - 15 April 2014

Mnangagwa will be worse than Mugabe

stambolis - 16 April 2014

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