News / National
'Criminal defamation law anti-democratic'
10 Oct 2013 at 10:15hrs | Views
THE lawyer representing Standard editor Nevanji Madanhire and former reporter Nqaba Matshazi in a criminal defamation appeal case involving Police Chief Superintendent Chrispen Makedenge, yesterday said criminal defamation charges have no room in a democratic society.
Advocate Eric Morris made the remarks at the Constitutional Court (ConCourt) where the journalists have appealed against section 96 of the Criminal Law (Codification and Reform) Act under which they are being charged. He said such laws gave enormous powers to wrongdoers who seek protection from the State to stifle the media.
Madanhire and Matshazi were arrested two years ago following publication of a story in the weekly Standard issue of June 26-July 2, 2011, titled MDC-T fears for missing Timba.
According to the State, the article referred to Makedenge as "notorious", a term he alleged was defamatory to him.
In their appeal, Madanhire and Matshazi argued that the section was ultra vires (beyond powers of) the old Constitution.
"This is an application for this court to stop the prosecution of my clients on the grounds that the law was at the time of prosecution unconstitutional. I submit that your lordships can make an order in terms of this application that at the time of prosecution criminal defamation was ultra vires the law," Morris said.
Morris further cited other democratic societies that had abandoned criminal defamation as it amounted to an infringement on constitutional rights of individuals to freedom of expression.
"Prior to this current application there was a huge rush on effecting arrest on journalists and right now the Attorney-General (AG)'s Office has stopped waiting for this court's decision," Morris said.
"Criminal defamation is now being used to serve all purposes for which it was not intended. Is the moral fabric of the State threatened when one calls a police officer 'notorious'? Journalists need to go on a course to uncover genuine corruption and if such laws are maintained, investigative journalism would be totally stifled."
Chief Justice Godfrey Chidyausiku indicated that the court would make a determination after considering both the new and old constitutions to establish whether at the time of the journalists' arrest the law was not flouted.
The judge, however, pointed out that according to the current constitution, it was clear that it provided for protection of individuals' integrity and criminalises defamation of any person.
Responding to the application, AG's representative Edmore Makoto, who was assisted by Tapiwa Mapfuwa, argued that the criminal defamation laws were meant to protect the poor members of society who could not afford to protect themselves.
"In our democratic society, the majority of people are poor and cannot afford to institute civil proceedings against perpetrators of criminal defamation," Makoto said.
Chief Justice Chidyausiku asked Makoto to explain what was acceptable in a "democratic society" which would require one to pursue criminal defamation in a situation where there was already a civil remedy. The ConCourt bench reserved judgment in the matter.
Advocate Eric Morris made the remarks at the Constitutional Court (ConCourt) where the journalists have appealed against section 96 of the Criminal Law (Codification and Reform) Act under which they are being charged. He said such laws gave enormous powers to wrongdoers who seek protection from the State to stifle the media.
Madanhire and Matshazi were arrested two years ago following publication of a story in the weekly Standard issue of June 26-July 2, 2011, titled MDC-T fears for missing Timba.
According to the State, the article referred to Makedenge as "notorious", a term he alleged was defamatory to him.
In their appeal, Madanhire and Matshazi argued that the section was ultra vires (beyond powers of) the old Constitution.
"This is an application for this court to stop the prosecution of my clients on the grounds that the law was at the time of prosecution unconstitutional. I submit that your lordships can make an order in terms of this application that at the time of prosecution criminal defamation was ultra vires the law," Morris said.
Morris further cited other democratic societies that had abandoned criminal defamation as it amounted to an infringement on constitutional rights of individuals to freedom of expression.
"Prior to this current application there was a huge rush on effecting arrest on journalists and right now the Attorney-General (AG)'s Office has stopped waiting for this court's decision," Morris said.
"Criminal defamation is now being used to serve all purposes for which it was not intended. Is the moral fabric of the State threatened when one calls a police officer 'notorious'? Journalists need to go on a course to uncover genuine corruption and if such laws are maintained, investigative journalism would be totally stifled."
Chief Justice Godfrey Chidyausiku indicated that the court would make a determination after considering both the new and old constitutions to establish whether at the time of the journalists' arrest the law was not flouted.
The judge, however, pointed out that according to the current constitution, it was clear that it provided for protection of individuals' integrity and criminalises defamation of any person.
Responding to the application, AG's representative Edmore Makoto, who was assisted by Tapiwa Mapfuwa, argued that the criminal defamation laws were meant to protect the poor members of society who could not afford to protect themselves.
"In our democratic society, the majority of people are poor and cannot afford to institute civil proceedings against perpetrators of criminal defamation," Makoto said.
Chief Justice Chidyausiku asked Makoto to explain what was acceptable in a "democratic society" which would require one to pursue criminal defamation in a situation where there was already a civil remedy. The ConCourt bench reserved judgment in the matter.
Source - newsday
