On 20 March 2000, the Supreme Court reserved judgement on the application by “Standard” journalists, editor Mark Chavunduka, and chief reporter Ray Choto, who are challenging Section 50 of the Law and Order Maintenance Act (LOMA). The full bench comprised of Chief Justice Anthony Gubbay and Justices Korsah, Mcnally, Muchechetere and Sandura heard defence lawyers […]
On 20 March 2000, the Supreme Court reserved judgement on the application by “Standard” journalists, editor Mark Chavunduka, and chief reporter Ray Choto, who are challenging Section 50 of the Law and Order Maintenance Act (LOMA).
The full bench comprised of Chief Justice Anthony Gubbay and Justices Korsah, Mcnally, Muchechetere and Sandura heard defence lawyers led by advocate Adrian De Bourbon.
De Bourbon argued that Section 50 was ultra vires the Constitution, specifically Section 20 (1), which protects freedom of expression, and Section 18 (2), providing for the right to a fair trial. De Bourbon argued that the offence provision was vague and broad and demanded that the charges against the journalists be dropped.
“If the state media such as ‘The Herald’ published a false story that the International Monetary Fund was giving Zimbabwe US$1 billion, the Attorney General (AG) would not prosecute them although this would cause despondency among opposition political parties which could use the poor economy to gain support. Had ‘The Standard’ lied that the Zimbabwe National Army (ZNA) drove out all the rebels from the Democratic Republic of Congo (DRC) they would not have been prosecuted,” said De Bourbon.
Bharat Patel, the legal advisory director in the AG’s office, assisted by Felicia Chatukuta, appeared on behalf of Defence Ministers Mahachi and Chinamasa. Patel argued that the provision was reasonably justifiable in a democratic society. He claimed that the government had to prove that the story was false and likely to cause fear, while the newsmen had to show that they took reasonable steps to verify their story.
In another case, on 21 March, the Supreme Court reserved judgement on a second application seeking an order to compel Commissioner of Police Augustine Chihuri to investigate the torture of Chavunduka and Choto by agents of the state. According to MISA Zimbabwe, the bench disputed the state council’s assertion that Chihuri had already commenced investigations, claiming that Chihuri’s efforts began only after the Supreme Court application was made. Members of the defence have told MISA that the commissioner of the police has been unresponsive to their legal demands for an investigation since 1999.
The future trial dates for these cases have not been set.
In a related development, Chavunduka and Choto are suing the army for unspecified damages for wrongful arrest and detention, and are pressing criminal charges over their assault and torture. However, their lawyers have repeatedly been denied access to filing papers with the appropriate military personnel, and currently seek a High Court order compelling the secretary of defence to accept the papers.
BACKGROUND:
Chavunduka was arrested by the military on 12 January 1999, and 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, but all were ignored. Both men sustained serious injuries as a result of torture at the hands of military police during their illegal detention.
The two are facing charges under Section 50(2) of the LOMA following a 10 January article in the “Standard” alleging a coup plot within the ranks of the military. They are accused of publishing false information likely to cause fear and alarm. In addition to challenging Section 50 of the LOMA and the police commissioner’s court order, they have pressed charges against the police detectives who handled their case for aiding and abetting their transfer from “lawful police custody to the illegal detention of the military authorities.” Chavunduka has also filed a contempt of court charge against Defence Secretary Job Whabira, who failed to procure his release after being served with a court order to this effect.
Earlier this month, Home Affairs Minister Dumiso Dabengwa argued in an opposing affidavit that the section being challenged, part of the repressive legislation used by the pre-independence Ian Smith regime, should remain in the statutory books to deal with irresponsible journalists in cases where national interests were at stake.
