Opinion / Columnist
Jonathan Moyo says criminal defamation is not only unconstitutional but also uncivilised
23 Feb 2015 at 12:40hrs | Views
IS criminal defamation still valid as an offence in Zimbabwe? This is the big question of the week in the wake of last Thursday's controversial declaration by the Constitutional Court that has, in my respectful view, been given and taken to mean that criminal defamation remains valid even though the Constitutional Court found it to have been inconsistent with and in contravention of the former Constitution.
I believe 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. So it is that I have been trying very hard, but I am afraid I have 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 ab initio.
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.
A new constitution does not and cannot make law. Only Parliament can make laws. In accordance with the well-established jurisprudential principle of the separation of powers, the courts only interpret 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.
Here's the background to last Thursday's controversial Constitutional Court declaration on criminal defamation made in Judgment No CCZ 2/2015 which has given rise to this week's big issue.
The applicants in the case, Const. Application No CCZ 78/12, were Nevanji Madanhire and Nqaba Matshazi. They were jointly charged with the crime of criminal defamation as defined in section 96 of the Criminal Law (Codification and Reform) Act (Cap 9:23) (the Criminal Law Code).
The cause of action was an article that was published on November 6, 2011, in the Standard newspaper about the Green Card Medical Aid Society set up by Dr Munyaradzi Kereke. Madanhire was then the paper's editor while Matshazi wrote the article that was deemed by the authorities to be criminally defamatory.
Allegations were made in the article to the effect that Green Card Medical Aid Society was unable to pay its members, staff and creditors; and that the Society was on the brink of collapse because its expenditure was alleged to outstrip its income.
The police arrested Madanhire and Matshazi and charged them with criminal defamation.
The two were prosecuted before the Magistrate Court in Harare during which they averred that the charge against them and their prosecution were in violation of their right to freedom of expression as enshrined in section 20(1) of the former Constitution.
In accordance with section 24(2) of the former Constitution, the Magistrate Court then referred the constitutionality of criminal defamation for determination by the Constitutional Court under the former Constitution. This was because the cause of action and the commencement of the case in the courts happened well before the adoption, let alone the operation, of the new Constitution.
It is important to note that as originally set out before the Constitutional Court, Madanhire and Matshazi clearly and unambiguously sought to have the offence of criminal defamation as defined in section 96 of the Criminal Law Code to be declared unconstitutional and struck down as being null and void, right from the beginning.
Furthermore, it is equally important to note that the same relief, to have criminal defamation declared null and void ab initio, was sought by E Morris — the Advocate of the applicant — during the hearing of the matter in the Constitutional Court.
However, and this is the origin of the controversy over last Thursday's Constitutional Court's declaration, on September 24, 2014, Justice Patel held with the concurrence of the entire Constitutional Court bench that ". . . the application in its original form did not address the relevant provisions of the new Constitution, and as a result, the application was confined by the Court to consistency or validity of the offence with the former Constitution".
In the circumstances, the relief was then modified and confined by the Constitutional Court to "the permanent stay of prosecution" of Madanhire and Matshazi.
In my respectful view, it was wrong and unnecessary for the Constitutional Court to fall short of declaring criminal defamation null and void and to therefore strike it down on controversial and indeed misplaced grounds that ". . . the application in its original form did not address the relevant provisions of the new Constitution".
In my respectful view, there are three fundamental considerations that separately and together render the position taken by the Constitutional Court on the validity of criminal defamation to be plainly wrong and unhelpful to the cause of justice.
In the first place, it is impossible to see or understand how on earth, the original application made in 2012 by Madanhire and Matshazi could have "addressed the relevant provisions of the new Constitution".
It is trite to point out that there was no new Constitution when the two made their original application in 2012. The new Constitution was put to a referendum as a draft on March 16, 2013. After its endorsement by that referendum, it was published on May 22, 3013, when chapters 3 and 4 as well as parts of chapters 5, 6, 7, 8, 9, 12 and 14 came into operation along with section 208. The rest of the new Constitution took effect on August 22, 2013, when President Mugabe was inaugurated after his July 31, 2013, electoral landslide.
Perhaps I am missing something and if I am, I stand to be corrected. But I cannot see for the life of me, how the form of the original application made in 2012 could address a then non-existent constitution whose existence only came in 2013. Just how?
In the second place, it is my respectful view that the Madanhire and Matshazi case on criminal defamation should have been determined on the basis of the original relief that they sought under the former Constitution without any reference whatsoever to the new Constitution.
Paragraph 8 of the Sixth Schedule to the new Constitution provides that:
"Any pending constitutional case . . .
(a) in which the argument from the parties has not been heard before the publication date (May 22, 2013) must be transferred to the Constitutional Court constituted in terms of sub-paragraph (2) (which provides for the composition of the Constitutional Court under the new Constitution);
(b) in which the argument from the parties has been heard by the publication date (May 22, 2013) must be completed by the Supreme Court unless all the parties to the case agree to it being referred to the Constitutional Court constituted in terms of sub-paragraph (2), in which event the Supreme Court must refer the case to that Court".
And paragraph 9 of the same Schedule stipulates that: "All cases, other than pending constitutional cases, that were pending before any court before the effective date (August 22, 2013) may be continued before that court or the equivalent court established by this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced."
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 provisions of the new Constitution" is contrary to the letter and spirit of paragraphs 8 and 9 of the Sixth Schedule to the new Constitution.
In the third place, the real and very important declaration of the Constitutional Court made on February 19, 2015 was as follows: "It is declared that s 96 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) is inconsistent with and in contravention of s 20(1) of the former Constitution".
Surely, this very clear declaration must legally mean that criminal defamation was, as it is, unconstitutional right from the beginning.
A law that was unconstitutional from the beginning, and which has been declared as such by the Constitutional Court, cannot suddenly spring into new life by dint of a new Constitution.
In the circumstances, the view that criminal defamation remains valid in Zimbabwe as a result of last Thursday's declaration by the Constitutional Court is, in my respectful consideration, untenable and not sustainable. Criminal defamation is dead. Long live freedom of expression!
----------------------
Professor Jonathan Moyo is the Minister of Information, Media and Broadcasting Services.
I believe 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. So it is that I have been trying very hard, but I am afraid I have 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 ab initio.
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.
A new constitution does not and cannot make law. Only Parliament can make laws. In accordance with the well-established jurisprudential principle of the separation of powers, the courts only interpret 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.
Here's the background to last Thursday's controversial Constitutional Court declaration on criminal defamation made in Judgment No CCZ 2/2015 which has given rise to this week's big issue.
The applicants in the case, Const. Application No CCZ 78/12, were Nevanji Madanhire and Nqaba Matshazi. They were jointly charged with the crime of criminal defamation as defined in section 96 of the Criminal Law (Codification and Reform) Act (Cap 9:23) (the Criminal Law Code).
The cause of action was an article that was published on November 6, 2011, in the Standard newspaper about the Green Card Medical Aid Society set up by Dr Munyaradzi Kereke. Madanhire was then the paper's editor while Matshazi wrote the article that was deemed by the authorities to be criminally defamatory.
Allegations were made in the article to the effect that Green Card Medical Aid Society was unable to pay its members, staff and creditors; and that the Society was on the brink of collapse because its expenditure was alleged to outstrip its income.
The police arrested Madanhire and Matshazi and charged them with criminal defamation.
The two were prosecuted before the Magistrate Court in Harare during which they averred that the charge against them and their prosecution were in violation of their right to freedom of expression as enshrined in section 20(1) of the former Constitution.
In accordance with section 24(2) of the former Constitution, the Magistrate Court then referred the constitutionality of criminal defamation for determination by the Constitutional Court under the former Constitution. This was because the cause of action and the commencement of the case in the courts happened well before the adoption, let alone the operation, of the new Constitution.
It is important to note that as originally set out before the Constitutional Court, Madanhire and Matshazi clearly and unambiguously sought to have the offence of criminal defamation as defined in section 96 of the Criminal Law Code to be declared unconstitutional and struck down as being null and void, right from the beginning.
Furthermore, it is equally important to note that the same relief, to have criminal defamation declared null and void ab initio, was sought by E Morris — the Advocate of the applicant — during the hearing of the matter in the Constitutional Court.
However, and this is the origin of the controversy over last Thursday's Constitutional Court's declaration, on September 24, 2014, Justice Patel held with the concurrence of the entire Constitutional Court bench that ". . . the application in its original form did not address the relevant provisions of the new Constitution, and as a result, the application was confined by the Court to consistency or validity of the offence with the former Constitution".
In the circumstances, the relief was then modified and confined by the Constitutional Court to "the permanent stay of prosecution" of Madanhire and Matshazi.
In my respectful view, it was wrong and unnecessary for the Constitutional Court to fall short of declaring criminal defamation null and void and to therefore strike it down on controversial and indeed misplaced grounds that ". . . the application in its original form did not address the relevant provisions of the new Constitution".
In my respectful view, there are three fundamental considerations that separately and together render the position taken by the Constitutional Court on the validity of criminal defamation to be plainly wrong and unhelpful to the cause of justice.
In the first place, it is impossible to see or understand how on earth, the original application made in 2012 by Madanhire and Matshazi could have "addressed the relevant provisions of the new Constitution".
It is trite to point out that there was no new Constitution when the two made their original application in 2012. The new Constitution was put to a referendum as a draft on March 16, 2013. After its endorsement by that referendum, it was published on May 22, 3013, when chapters 3 and 4 as well as parts of chapters 5, 6, 7, 8, 9, 12 and 14 came into operation along with section 208. The rest of the new Constitution took effect on August 22, 2013, when President Mugabe was inaugurated after his July 31, 2013, electoral landslide.
Perhaps I am missing something and if I am, I stand to be corrected. But I cannot see for the life of me, how the form of the original application made in 2012 could address a then non-existent constitution whose existence only came in 2013. Just how?
In the second place, it is my respectful view that the Madanhire and Matshazi case on criminal defamation should have been determined on the basis of the original relief that they sought under the former Constitution without any reference whatsoever to the new Constitution.
Paragraph 8 of the Sixth Schedule to the new Constitution provides that:
"Any pending constitutional case . . .
(a) in which the argument from the parties has not been heard before the publication date (May 22, 2013) must be transferred to the Constitutional Court constituted in terms of sub-paragraph (2) (which provides for the composition of the Constitutional Court under the new Constitution);
(b) in which the argument from the parties has been heard by the publication date (May 22, 2013) must be completed by the Supreme Court unless all the parties to the case agree to it being referred to the Constitutional Court constituted in terms of sub-paragraph (2), in which event the Supreme Court must refer the case to that Court".
And paragraph 9 of the same Schedule stipulates that: "All cases, other than pending constitutional cases, that were pending before any court before the effective date (August 22, 2013) may be continued before that court or the equivalent court established by this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced."
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 provisions of the new Constitution" is contrary to the letter and spirit of paragraphs 8 and 9 of the Sixth Schedule to the new Constitution.
In the third place, the real and very important declaration of the Constitutional Court made on February 19, 2015 was as follows: "It is declared that s 96 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) is inconsistent with and in contravention of s 20(1) of the former Constitution".
Surely, this very clear declaration must legally mean that criminal defamation was, as it is, unconstitutional right from the beginning.
A law that was unconstitutional from the beginning, and which has been declared as such by the Constitutional Court, cannot suddenly spring into new life by dint of a new Constitution.
In the circumstances, the view that criminal defamation remains valid in Zimbabwe as a result of last Thursday's declaration by the Constitutional Court is, in my respectful consideration, untenable and not sustainable. Criminal defamation is dead. Long live freedom of expression!
----------------------
Professor Jonathan Moyo is the Minister of Information, Media and Broadcasting Services.
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