via Criminal defamation: State gets ultimatum | The Herald February 26, 2015 by Daniel Nemukuyu
Chief Justice Godfrey Chidyausiku has given the State up to 30 days to clearly state its position on whether criminal defamation should be removed from the statutes in terms of the new Constitution.
This comes at a time when the Media Institute of Southern Africa has filed a separate constitutional application at the Constitutional Court seeking an order declaring Section 96 of the Criminal Law Codification and Reform Act unconstitutional in terms of the new supreme law.
The Constitutional Court last year ruled the law to be in violation of Section 20 (1) of the former Constitution in the case in which two Standard journalists Nevanji Madanhire and Nqaba Matshazi, who were being charged for criminally defaming GreenCard chairperson Dr Munyaradzi Kereke, decided to contest the law’s constitutionality.
Section 20 (1) of the Constitution covers the people’s right to freedom of expression.
The court ruled that Section 96 of the Criminal Law Codification Reform Act was in violation of the new Constitution, but its judgment was silent on removal of the law from the statutes and its validity in terms of the new Constitution.
Yesterday a fresh criminal defamation contest involving Zimbabwe Football Association chief executive Mr Jonathan Mashingaidze, was brought to the Constitutional Court and the court ordered the prosecution in the matter to file detailed arguments on the validity of the law under the new supreme law.
Chief Justice Chidyausiku said the matter should be dispensed with in the earliest possible time before giving the State 30 days to state its position.
“We need to hear your full submissions on the issue. I will give you 30 days to justify why the law must not be struck off.
“The matter is hereby postponed sine die and the registrar is directed to set down the matter within 30 days,” ruled Chief Justice Chidyausiku.
Mr Mashingaidze is being accused of criminally defaming his former boss Ms Henrietta Rushwaya, when he gave interviews to the media.
His team of lawyers comprised Advocates Lewis Uriri, Webster Chinamhora, Tawanda Zhuwarara and instructing attorney Mr Ralph Maganga of Maganga and Company.
Adv Uriri argued that Section 96 of the Criminal Law Codification Reform Act violated Sections 60 and 61 of the new Constitution hence it must be struck off.
These cover freedom of conscience and freedom of expression respectively.
In the State’s heads of argument filed by Mr Edmore Makoto of the National Prosecuting Authority, it was submitted that it was not the right time for the court to determine the issue of the validity of the law.
“It is submitted that unless and until the challenge under the new Constitution is brought to this court based on facts arising after the commencement of the new Constitution, the issue is not yet ripe for this honourable court’s determination,” read part of the heads.
Meanwhile, media lawyer Mr Chris Mhike, yesterday filed another court application at the Constitutional Court seeking an order declaring criminal defamation to be in violation of the new Constitution.
Mr Mhike was acting for MISA, and journalists — Nqaba Matshazi, Sydney Saize and Godwin Mangudya together with a non-journalist Mr Roger Dean Stringer.
They argued that the law was in breach of Section 61 (freedom of expression) and Section 62 (access to information) of the new Constitution.
They want the law to be removed from the statutes for non-compliance with the Constitution.
The MISA case is yet to be set down for hearing.
COMMENTS
The Constitution is a legal framework for the nation.
Why is the Chief Justice asking the State what the Constitution says about Criminal Defamation?
Surely the Chief Justice as the highest legal authority in the country is the person to say whether the Constitution allows Criminal Defamation, and if it does not, then he as Chief Justice must strike down the Criminal Defamation laws.
Instead he is asking the State to decide.
This is a complete contradiction of what the whole concept of a Constitution is.
A Constitution is a entrenching the Rule of Law, rather than the Rule by Men…
Justice Chidyausiku’s action merely hands back the Constitutional authority to the men in charge of the ruling party.
If the Chief Justice is unable or unwilling to make such judicial rulings, then he must step down.
Because the Chief Justice is a stooge and although he knows the law he doesn’t want to express his independence. I guess someone needs to approach the constitutional court and ask it to be independent.