Criminal defamation unconstitutional

HARARE - The Constitutional Court yesterday ruled that the use of criminal defamation laws has a “stifling and chilling effect” on free speech in Zimbabwe.

In the landmark ruling that has been welcomed by the media fraternity, the full Con-Court bench ruled in favour of  The Standard editor Nevanji Madanhire and his reporter Nqaba Matshazi, ruling that they did not criminally defame Munyaradzi Kereke who claimed they had stolen GreenCard Medical Aid financial documents.

The paper had reported that Kereke’s society was facing imminent collapse because it’s income was  far outweighed by expenditure.

Justice Bharat Patel, in the judgment, endorsed by the whole bench, said: “I take the view that the harmful and undesirable consequences of criminalising defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect.

“Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation.

“Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. In short it is not necessary to criminalise defamatory statements.”

The Con-Court ruled that “it is inconceivable that a newspaper could perform its investigative and informative functions without defaming one person or another.”

“Consequently, I am satisfied that the offence is not reasonably justiciable in a democratic society within the contemplation of Section 20 (2) of the former Constitution. Accordingly, it is inconsistent with the freedom of expression guaranteed by Section 20 (1) of that Constitution.”

The new Constitution more poignantly explicitly enshrines freedom of the media.

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