HARARE - In a move that is likely to annoy many government and Zanu PF hawks, Information minister Jonathan Moyo insists that criminal defamation is “dead” and that it has no place in modern society.
In a biting Facebook post on Sunday that has been given the thumbs up by journalists and media advocacy groups, Moyo not only defended freedom of expression in the country, but also roundly slated the view that criminal defamation should only be seen and upheld as outlawed in terms of Zimbabwe’s old Constitution.
Moyo’s much hailed view came after Constitutional Court judge Justice Bharat Patel threw the cat among the pigeons last week when he ruled that criminal defamation was still a valid law — a position that is supported by Vice President Emmerson Mnangagwa, who is also Justice minister.
“In my respectful view, there’s nothing on these two judgments that justifies the validity of criminal defamation. The Court said ‘It is declared that section 96 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) is inconsistent with and in contravention of 20(1) of the former Constitution’.
“#Criminal defamation is dead. Long live freedom of expression,” Moyo said.
Foster Dongozi, Zimbabwe Union of Journalists secretary general concurred with Moyo adding that the new constitution also out-lawed criminal defamation.
“Those revelations (that criminal defamation still obtains) reflect a sad day for Zimbabwe. Surely all progressive forces should say criminal defamation has no place in society but should be found in the statutes of barbaric and backward societies.
“We need all laws to be realigned with the new constitution so that we do not have any disconnect within our law books,” Dongozi said.
Last week Patel issued a declaratory order in agreement with Mnangagwa that criminal defamation remained valid law in Zimbabwe.
“In the result, it is declared that Section 96 of the Criminal Law (Codification and Reform) Act is inconsistent with and in contravention of Section 20(1) of the former Constitution.
“It is ordered that the prosecution of the applicants in respect of the charge of criminal defamation, being count 2 in the proceedings under CRB Number 8020-21/11, be permanently stayed,” Patel’s declaratory order said.
This effectively means that journalists are not yet free from criminal defamation until someone challenges the constitutionality of the law in terms of the new constitution.
But in his Facebook post, Moyo described the declaration by the Constitutional Court as controversial, adding that he believed that in the same way “one cannot subscribe to the right to life and support the death penalty without suffering a fatal contradiction, one cannot subscribe to freedom of expression and in the same vein support criminal defamation”.
“In my respectful consideration, criminal defamation is not only unconstitutional, it is also uncivilised.
“I’ve been trying very hard but I’m afraid I’ve failed to understand how it can be said that Criminal Defamation, that is section 96 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), remains a valid offence in our laws when the Constitutional Court has ruled -- in a matter that commenced before the new Constitution came into effect -- that this section is inconsistent with and in contravention of section 20(1) of the former Constitution.
“Surely the import of last week’s declaration by the Constitutional Court in a 2012 case whose cause of action was in 2011, that Criminal Defamation violated the former Constitution well before the new Constitution came into effect, must necessarily be that section 96 of the Criminal Law (Codification and Reform) Act is null and void abinitio.
“It cannot be constitutionally correct to say that, although criminal defamation violated the former Constitution right from the beginning or from the time it was enacted into law, it is nevertheless still valid as an offence because it has not been tested against the provisions of the new Constitution.
“Such an argument is wholly untenable because it is tantamount to saying that the new Constitution has the force and effect of resurrecting dead laws,” Moyo said.
He said a new constitution did not and could make law. Only Parliament could make laws. In accordance with the established jurisprudential principle of the separation of powers, the courts only interpreted the law made by the people through their legislature for implementation by the government of the day.
“As such, when a law is declared by the Constitutional Court to be inconsistent with and in contravention of the Constitution, as has happened to the law of criminal defamation in relation to the former Constitution, then that law is dead. Full stop,” he said.
“I believe it is quite clear from paragraphs 8 and 9 of its Sixth Schedule that, save for non-constitutional cases, the new Constitution does not provide that constitutional matters that were commenced before the new fundamental law of the land came into effect must be dealt with in terms of the new Constitution.
“Quite the contrary, the new Constitution provides that pending constitutional cases that were commenced before the new Constitution became operational must be finalised in terms of the former Constitution.
“As such, the observation by the Constitutional Court that “the application in its original form did not address relevant provisionsof the new Constitution” is contrary to the letter and spirit of paragraphs 8 and 9 of the Sixth Schedule to the new Constitution,” Moyo added.