While MISA Zimbabwe commends the court for this judgment, the organisation is concerned by the court's observations that the right to freedom of expression as conferred by Section 61 "...is to be more narrowly construed as being subordinate to the value of human dignity..."
MISA Zimbabwe has, over the years, reiterated the harmful consequences of criminal defamation on freedom of expression and has issued a number of statements to that effect.
MISA Zimbabwe therefore welcomes the key judicial points that the Constitutional Court noted in the Nevanji Madanhire & Nqaba Matshazi judgment, which dovetail with MISA Zimbabwe’s longstanding observations that criminal defamation is an undemocratic law that is simply used as a tool to muzzle the media by public officials.
Some of the key and noteworthy points stemming from this judgment are:
– Criminalising defamation results in harmful consequences such as the chilling possibility of arrest, detention as well as imprisonment and that these are excessive in effect.
– Criminalising defamation is a disproportionate remedy to the objective of protection of reputations and rights and freedoms of other persons.
– Criminal defamation stifles and silences the free-flow of information in the public domain resulting in an uninformed citizenry on matters of public significance.
– It is unnecessary to criminalise defamatory statements.
– The country’s civil remedies for defamation afford ample compensatory redress for injury to one’s reputation or dignity.
While MISA Zimbabwe commends the court for this judgment and in particular the observations it made on this issue, the organisation is concerned with some seemingly salient issues raised in the ruling, which the court noted are “matters for argument and consideration as and when appropriate…”.
In particular, the court’s observations that the right to freedom of expression as conferred by Section 61 (of the new constitution) “…is to be more narrowly construed as being subordinate to the value of human dignity…” and also that “it might also be argued that the offence of criminal defamation is a justifiable limitation on the freedom of expression as envisaged by s86 of the new constitution….”
MISA Zimbabwe finds these observations both disturbing and contradictory to the import of the ruling.
Although the judgment in question was in respect of freedom of expression as enshrined in Section 20 of the old constitution, it is still the organisation’s considered view that the observations that the court made regarding the unjustifiability of criminalisation of defamation, still apply to the new constitution.
Thus, the court’s proffered argument that freedom of expression as currently provided for, is arguably subordinate to the value of human dignity is also disturbing. More-so and considering that in international law, all rights are indivisible, which means that one right cannot be compromised at the expense of another.
MISA Zimbabwe is also concerned that having so commendably observed that it is unnecessary to criminalise defamatory statements, and that criminalising defamation has harmful and disproportionate consequences on persons so accused, the court would then go on to proffer an argument that criminal defamation may be a justifiable limitation in respect of section 86 of the constitution.
Section 86 provides for limitations to rights and freedoms in the constitution.
While the organisation fully appreciates that freedom of expression and such related rights as provided for in sections 61 and 62 of the constitution as is the case with all other rights, are subject to limitations, there is nothing in our considered reading of s86 suggesting that “criminalisation” of defamation would be justifiable.
This is more-so, considering the extensive legal analysis and the case the court makes in this judgment, on how unjustifiable criminalisation of defamation is.
It is worth noting that while this judgment creates legal precedence upon which future challenges against criminal defamation can be mounted, the provision is still part of the country’s statutes and remains operative until it is hopefully struck down under the new constitution.
It is MISA Zimbabwe’s belief that despite the worrying arguments that are also raised in this judgment, the Judiciary in this and other cases has already made its pronouncements clear on the impact of criminal defamation on freedom of expression.
The undesirability of criminal defamation should now hold true in our country, cognizant of the inconsistency of such laws with freedom of expression, access to information and the free practice of the media profession.
MISA Zimbabwe therefore recommends the immediate repealing of section 96 of Criminal Law (Codification and Reform Act).
