19 June 2002
State trial of journalist Andrew Meldrum "likely to hit brick wall," says MISA
(MISA/IFEX) - The trial of Andrew Meldrum, a foreign correspondent for the British newspaper "The Guardian", is "likely to hit a brick wall," according to MISA, as the state faces the dilemma of having to prove that Meldrum did in fact publish a controversial news story in Zimbabwe, since the article in question was downloaded from the Internet. The defence in the case has characterised the trial as "an attempt by the Zimbabwean government to inflict its repressive media laws on the rest of the world."
The dilemma that the state finds itself in is based on the fact that "The Guardian" newspaper is unavailable in Zimbabwe. The prosecution insists that its criminal courts have jurisdiction over editors and journalists abroad whenever their "falsehoods" are downloaded by intelligence officers who surf the Internet, looking for "law breakers."
The prosecution contends that the crime is one of strict liability: a journalist is guilty if the allegation reported on turns out to be false, however credible or newsworthy it was at the time of publication.
The magistrate in the Meldrum case, Godfrey Macheyo, must decide the crucial question of whether the website story was published in London, where it was uploaded to the Guardian Unlimited web server, or in Harare, where Sergeant Blessmore Chishaka downloaded it in May.
If the crime of "false publication" was committed in London, the Zimbabwean court should have no jurisdiction, according to MISA. However, if it was committed in Zimbabwe, the court would have jurisdiction to punish not only Meldrum but also the editor of "The Guardian" and anyone else responsible for the uploading. Last week, the prosecution, which likens the Internet to television broadcasting, sought to demonstrate how Guardian Unlimited is published in Zimbabwe. The court moved its proceedings to the Sheraton Hotel's business centre, where Sergeant Chishaka quickly accessed Guardian Unlimited and called up every article written by Meldrum, except the offending piece. "Possibly it has been deleted," he concluded.
The case resumed on 17 June, with the prosecution relying on a copy of the web page downloaded in May. Meldrum's lawyer, Beatrice Mtetwa, argued during the week of 10 June that the printout which was produced by the state is different from the one that was produced at her client's initial hearing on 2 May, and therefore did not constitute "admissible evidence." Prosecutor Thabani Mpofu insisted that the document was admissible in terms of the Criminal Procedure and Evidence Act. Mtetwa countered by saying that the document was produced on a website that is neither owned by Meldrum or one over which he has control. Mtetwa added that if the court is to accept the document as evidence, the prosecution must establish its originality by presenting evidence demonstrating how the document was edited and posted onto the website. Mpofu argued, however, that, "what was at the center of the trial was the story, not websites and the Internet."
The defence proposes to produce expert evidence to explain the difference between "push" and "pull" technologies. "Push" technologies, such as broadcasting, transmit and direct information to particular areas. With "pull" technologies, such as the Internet, information reaches Zimbabwe only as a result of an electronic message sent from another jurisdiction. The Meldrum case is the first to assert local criminal jurisdiction over foreign web postings.
MISA-Zimbabwe believes that the prosecution of Meldrum may prove the limitations of the Access to Information and Protection of Privacy Act. The government claims that its laws are of concern only to Zimbabwe and do not allow the international community to "interfere in the country's internal affairs." Yet, by giving these laws extra-territorial effect, asserting jurisdiction over web publishers wherever they may be located, MISA believes that Zimbabwe's laws are attacking freedom of speech abroad as well as at home.
The news story that led to the prosecution was published in "The Guardian" in April. It reported claims made in a local Zimbabwean newspaper, "The Daily News", that Brandina Tadyanemhandu, aged 53 and a mother of eight, had been decapitated in front of several of her children by supporters of the ruling Zimbabwe African National Union Patriotic Front (ZANU-PF) party near Karoi, 120 miles north-west of Harare. The story was carried by a number of British newspapers and international news agencies.
Meldrum was arrested on 2 May and released the same day on bail of the equivalent of US$36. However, a magistrate's court in Zimbabwe ruled on 30 May that Meldrum should be tried on allegations of having written falsehoods. He was subsequently charged under the Access to Information and Protection of Privacy Act.
In a front-page story on 27 April, "The Daily News" apologised to the ruling ZANU-PF party and to the government after it was revealed that the husband of the victim might have misled the paper.