(MISA/IFEX) – The editor of the “Standard” newspaper, Mark Chavunduka, and chief writer Ray Choto, have lodged an application with the Supreme Court challenging the validity of the Law and Order Maintenance Act (Loma) under which the two are being charged for allegedly causing “alarm and despondency.” **Updates IFEX alerts of 31 May, 11 May, […]
(MISA/IFEX) – The editor of the “Standard” newspaper, Mark Chavunduka, and
chief writer Ray Choto, have lodged an application with the Supreme Court
challenging the validity of the Law and Order Maintenance Act (Loma) under
which the two are being
charged for allegedly causing “alarm and despondency.”
**Updates IFEX alerts of 31 May, 11 May, 15 March, 24 February, 12 February,
11
February, 10 February, 9 February, 3 February, 29 January, 27 January, 25
January, 22 January, 21 January, 18 January, 15 January and 13 January
1999**
The lawyer for the two journalists, Simon Bull of Atherstone and Cook legal
practitioners, said that the Supreme Court application was filed on 2 July
1999, and that on the same day the court papers were served on the
respondents, the minister of home affairs and the attorney-general.
The journalists are seeking the intervention of the Supreme Court on the
grounds that the law under which they are being charged is vague and that
the legislation itself is too draconian for them to be given a fair trial.
“It is our respectful submission that Section 50 (2) of the Act is ultra
vires the Constitution, and specifically Section 20 (1) of the Constitution,
which protects freedom of expression including, and in particular, the right
to impart and receive information, and Section 18 (2) since the offence
provision is so vague and wide that we cannot receive a fair trail on the
allegation made against us,” says the application.
In support of their view that the legislation is draconian, the journalists
commented in a memorandum to the ministry of home affairs: “We find it
extraordinary that we should have been charged with a contravention of
Section 50 (2) (a) of the Act, when its successor and which, inter alia, is
intended to repeal the Act, namely, the Public Order and Security Bill which
has actually reached the stage of receiving presidential assent, does not
contain any provisions made in Section 50 of the Act.”
The journalists are further arguing that research undertaken on their behalf
had shown that there was no peace-time “fake news” criminal sanction in
Australia, Denmark, Germany (other than a very specific prohibition on
Holocaust denial), the United Kingdom and the United States of America. They
said that the false news provision had not been applied in France in recent
years, and that similar legislation in Canada and Antigua and Bermuda was
not determined to contravene the constitution of those countries.
“The United Nations Human Rights Committee has on four occasions expressed
concern with false news provisions in national law, namely with regard to
Tunisia (1995 report), Mauritius (1996 report) Uruguay and America (1998
report). In the premises, we pray that this honourable court issue an order
in accordance with the draft order attached hereto,” says the application,
which it is understood, will be heard by a full bench of the Supreme Court
before the trial of the journalists on 2 August.
Background Information
Chavunduka was arrested by the military on 12 January. Choto was arrested by
police on 19 January, and then handed over to the military for
interrogation. Before their release on bail on 21 January, the newspaper
secured at least three High Court orders demanding their release, which were
all ignored. Both men sustained serious injuries as a result of torture
suffered at the hands of military police during their illegal detention.
The current Supreme Court challenge is one of a number of court battles that
have arisen since the two journalists were arrested.
Both Chavunduka and Choto are facing charges under the Law and Order
Maintenance Act following an article in the “Standard” on 10 January
alleging a coup plot within the ranks of the military. Their trial is
expected to commence on 2 August.
On 12 March this year, the Zimbabwean High Court cleared Defence Minister
Moven Mahachi of contempt of court charges following an application in this
regard brought by the “Standard”. However, the court found that his
secretary, Job Whabira, was guilty of ignoring a court order and
subsequently ordered the ministry to pay the legal fees which the paper had
incurred while trying to secure the release of Chavunduka and Choto.
The court said it accepted the defence argument that Mahachi was out of the
country when the orders had been served and that Whabira had no powers to
effect them. However, it said Whabira, who allegedly told the paper at the
time that the army would not obey court orders and would free the journalist
at its own pace, acted wrongly. The matter was referred to the
attorney-general, who was empowered to institute a criminal investigation
and formally charge Whabira with contempt. However, to date this has not
happened.
In May this year, the two journalists laid civil and criminal charges
against the police and military. The pair are suing the army for unspecified
damages for wrongful arrest and detention. They have also laid criminal
charges over their assault and torture, while also pressing charges against
the police detectives who handled their case for aiding and abetting their
release from “lawful police custody to the illegal detention of the military
authorities.” In addition, Chavunduka has formally laid a contempt of court
charge against the defence secretary, Job Whabira, “arising from his
contemptuous remarks when being served with the order for my release…and
failing to immediately do all in his power to implement the order and
procure my release.”
On being served with the court order in January demanding the release of
Chavunduka, Whabira said: “The judge cannot direct us. We will move at our
own pace. Any civilian who meddles in military matters is subject to
military law.”
The court cases are all ongoing.
