Criminal defamation is a necessary evil, says Govt

CRIMINAL defamation is a necessary evil in regulating media operations and journalists should be prosecuted for the offence, the government has said.

The government said this through the heads of argument filed by the Attorney General's Office on behalf of the Attorney General and Justice, Legal and Parliamentary Affairs ministry (represented by Vice-President Emmerson Mnangagwa who oversees it), opposing an application by the Media Institute of Southern Africa to strike down Section 96 of the Criminal Law (Codification and Reform) Act.

The government argued that the law should remain in the country's statute books.

The Constitutional Court will hear the matter next Wednesday.

In the heads of argument filed on June 25 this year at the Constitutional Court, the government said journalists who breach the law should continue to be arrested.

"In view of the above, prosecution of the media who commit a crime of defamation is not inconsistent with the Constitution.

"In exercising their right to freedom of expression and freedom of the media under Section 61 of the Constitution, journalists should also guard the rights of others as freedom of expression is not an absolute right," reads part of the heads.

The government argued that criminal defamation was a fair and justifiable limitation to the right to freedom of expression.

"Section 96 of the Criminal Code is a fair, reasonable, necessary and justifiable limitation to the right of freedom of expression and freedom of the media.

"It seeks to guarantee the right to human dignity equally guaranteed under the Constitution.

"The purpose of the limitation is clear, it is to protect citizens from malicious injury to their reputation or dignity," read the arguments.

The law, according to the government, fosters responsible journalism and ensures that in exercising their right to freedom of expression and the media, journalists verify their facts as being truthful prior to publication.

The government argued that while Section 61(1) and (2) of the Constitution guarantees freedom of expression and the media, Section 61(5) (c) of the same supreme law, places limitations on the freedoms.

Section 61(5) (c) reads:

"Freedom of expression and freedom of the media excludes malicious injury to a person's reputation or dignity."

Misa together with journalists - Nqaba Matshazi, Sydney Saize, Godwin Mangudya and Roger Stringer - filed the Constitutional application after the Constitutional Court ruled that criminal defamation was unjustified and unconstitutional in terms of the old Constitution.

The case was brought up for clarity on the law's position in terms of the new Constitution.

Meanwhile, The Herald editor Caesar Zvayi has a pending case in which he is seeking the striking down of criminal defamation.