Is it a crime to publish false news?

EARLIER this month, reports circulated on social media alleging that a police officer in Harare had struck a woman with his baton and killed a baby strapped on her back.

The police issued a denial, saying that the police officer had tried to stop a kombi by smashing its windscreen. Glass fragments hit a woman and her baby, and a fracas ensued. The mother and child were taken to a clinic and found not to have suffered injury.

A well-known investigative journalist, Hopewell Chin'ono, and MDC Alliance politicians Job Sikhala and Fadzayi Mahere, have been arrested for publishing or communicating the original report alleging that the child had died. They are being charged with contravening section 31(a) (iii) of the Criminal Law (Codification and Reform) Act, which reads:

"Any person who, whether inside or outside Zimbabwe -

(a) publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of -

(iii) undermining public confidence in a law enforcement agency, the Prisons and Correctional Services or the Defence Forces of Zimbabwe;

- shall, whether or not the publication or communication results in a consequence referred to in subparagraph (iii)

- be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level 14 [currently $120 000] or imprisonment for a period not exceeding 20 years or both."

Whatever really happened to the woman and her baby - and the police version is being queried — there is no legal justification for charging anyone with contravening section 31(a)(iii) of the Code, because in 2014 the Constitutional Court, the highest court in the land, declared the section unconstitutional and
void.

The history of that declaration is as follows:

- In 2009, before the present Constitution came into force, two members of staff of the Independent newspaper were charged with contravening section 31(a)(iii) by publishing an article alleging State agents had been guilty of illegal abductions. They applied to the Supreme Court for an order declaring that the section infringed the right to freedom of expression guaranteed by the former Constitution and was therefore void.

And finally, they should not be prosecuted on a charge of contravening section 31(a)(iii) because if a prosecution is to be lawful, there must be "reasonable and probable cause" to believe that the accused person committed the offence charged. If the offence charged is not an offence there cannot be reasonable and probable cause and the prosecutor may be sued for malicious prosecution.