A presentation to the MISA Zimbabwe Stakeholders Meeting on Decriminalising Freedom of Expression in Zimbabwe.
13 November 2014
Amber Hotel, Holiday Inn
The contentious issue of criminalization of freedom of expression/ criminal defamation in Zimbabwe has been at the forefront of the overall struggle or quest for democratic media freedom in Zimbabwe. It is the arrests, detention and comparatively few convictions of journalists since our national independence that has led to many of our citizens, media organizations and some policy makers remaining consistently opposed to it.
The new constitution’s incrementally progressive provisions on media freedom, freedom expression and access to information signify a potential departure point to what has been obtaining in relation to criminal defamation. The state now has the obligation of ensuring media freedom in a much more specifc manner than was the case in the past.
Such an assurance will mean a review of criminal defamation laws in order to meet the spirit and letter of the new constitution of the country.
Apart from the new constitution there have been three major developments that affect the status of criminal defamation law and policies in Zimbabwe. At law the most important has been the June 2014, constitutional court ruling in the case of Madanhire vs Attorney General in which the court found section 96 of the Criminal Law Codification and Reform Act to be unconstitutional in relation to Section 20 of our previous constitution. Furthermore, the constitutional court found in another case in July 2014, Chimakure vs Attorney General parts of section 31 of the same act to be in violation of the same section 20 (i) of the previous constitution.
The second major development vis-à-vis criminal defamation were statements made by the Minister of Media, Information and Broadcasting Services, Professor Jonathan Moyo in April this year. He was reported to have stated that he was not keen on keeping criminal defamation in the statute books. This was after the editor of the Daily News, Stanley Gama and a reporter for the same paper, Fungisai Kwaramba had been arrested for allegedly publishing a false story.
The third development is that the Minister of Justice and Legal Affairs, Emerson Mnangangwa has however been quick to inform Parliament that while government welcomes the constitutional court rulings against criminal defamation, these have only been in terms of the old constitution. He also went further to argue for the retention of criminal defamation in order to make journalists accountable and that until the said laws are struck down by the Constitutional Court in terms of the new constitution, government would continue to use them.
The three developments point to a number of realities on the subject matter. The first being that despite the constitutional court judgments outlawing criminal defamation, it is still a criminal offence to publish a falsehood, insult the President or undermine the authority of the security services. This would mean sections that effect criminal defamation in terms of the Public Order and Security Act (POSA), the Criminal Law (Codification and Reform) Act and the Access to Information and Protection of Privacy Act (AIPPA), Official Secrets Act (among others) remain valid until, as Minister Mnangwagwa says, they are struck down by the constitutional court in relation to the new constitution. Or until, in different circumstances, Parliament repeals the specific sections.
The second reality is the broader political context in which criminal defamation is functional. The quantitative expansion o f the media (more newspapers and commercial radio stations) has meant that there is greater potential for media houses to get into trouble with the law on various stories they publish.
Furthermore, the increasing usage of social media and the media has also led to a lot of potential for the use of criminal defamation laws against citizens who are not journalists. The specific case in point here is that of the now infamous Madzibaba Chacha who paid a $100 fine for being a criminal nuisance after posting a photo of himself in police uniform. This was of course after the incident of the apostolic faith members who had attacked the police. It would be trite to note that Madzibaba Chacha is also of the same religious persuasion.
The emerging political role of the media in issues to do with succession has placed criminal defamation in the spotlight. I am certain that many an aggrieved politician particularly those in the ruling party would prefer to sometimes seek the arrest of journalists for stories that appear malicious or unfair. The only catch at the moment is that it is the state controlled media that has taken a key role in determining editorial angles to stories and issues to do with the pending Zanu Pf congress.
It is however a good thing that these politicians have not done so and this may portend a new trend where the media is only sued for civil defamation, as Vice President Dr. Joice Mujuru has threatened to do with the Herald.
However, there are opportunities for the repealing of criminal defamation in existent laws. These include the new constitution’s guarantee of media freedom and access to information. Especially where there is the review and realignment of laws to conform to the spirit, letter and intent of the same said new constitution.
Furthermore, the public statements of the minister of Media, Information and Broadcasting Services as to his aversion to criminal defamation are signs that government may eventually act on the issue. But this is only if it is pushed to do so and that would constitute an opportunity even if the ministry of justice remains keen on retaining it. As Minister Mnangagwa has also indicated, there is the further option of testing the constitutionality of current criminal defamation laws with the constitutional court.
But perhaps the most important issue of all is to address the negative import of physical punishment by the state or an individual for expressing an opinion publicly. We have to deal with it not only in terms of power and media dynamics but also in relation to the everyday opinions that are expressed publicly. Be it in good jest, seriousness or general banter, expressing oneself should not the spectre of a jail cell, wherever and whoever one is.
 Sections 61 and 62 of the new constitution’s Bill of Rights deal with Freedom of expression and access to information respectively.
 Please see MISA- Zimbabwe Advocacy Papers on Criminal Defamation, Censorship and Entertainment Controls, State Secrets and Access to Information for detailed summaries of the specific sections that effect criminal defamation in Zimbabwe.