Freedom of Expression Case

via Freedom of Expression Case | The Zimbabwean 2 September 2014

COURT WATCH 15/2014

[30th August 2014]

Freedom of Expression Case

Constitutionality of Section 31(a)(iii) of the Criminal Law Code

[Publication of False Statements Prejudicial to the State]

This bulletin outlines a landmark freedom of expression case that began in May 2009 in the magistrates court when journalists Chimakure and Kahiya and the Zimbabwe Independent were charged under section 31(a)(iii) of the Criminal Law Code with publishing false statements prejudicial to the State. The defence challenged the constitutionality of this provision and in July 2009 the case was referred to the Supreme Court which was then the court of referral for constitutional cases. In June 2010 the Supreme Court heard the case but delayed its judgment. That judgment was given in October 2013, and was based on the former Constitution, the one in force when the alleged offence was committed and when the case was argued. [Already argued pending constitutional cases remained with the Supreme Court when the Constitutional Court came into being on 22nd May 2013. Unargued pending cases were automatically transferred to the new court.] It was this October 2013 judgment that transferred the case to the Constitutional Court for a final decision, and gave the Minister of Justice time to provide evidence to justify the retention of section 33(a)(iii) of the Criminal Law Code.

The State v Chimakure, Kahiya & ZimInd Publishers (Pvt) Ltd

[Constitutional Application No. SC 247/09]

Background: Towards the end of 2008 the press were reporting on the abduction and forced disappearance of a number of human rights and MDC activists. After they were eventually brought to court by the police, various charges were levelled against the activists, including involvement in acts of sabotage or terrorism and recruiting for training in sabotage and terrorism aimed at overthrowing the government. The Zimbabwe Independent, which had covered the whole saga, reported on the contents of indictment papers and case summaries filed by the Attorney-General with the High Court for the trial of one group of those abductees in July 2009. The articles named individual senior police and CIO personnel as allegedly involved in the abductions of the activists. The Attorney-General regarded this as amounting to publication of false statements prejudicial to the State, and The Zimbabwe Independent’s editor and a senior journalist were arrested and charged, together with a representative of the newspaper company, under section 31 of the Criminal Law Code. This section creates a criminal offence styled “publishing or communicating false statements prejudicial to the State” and provides for the imposition of a fine of up to $5000 or imprisonment of up to 20 years, or both, on anyone convicted. The alleged prejudice to the State in this case was the undermining of public confidence in the police and the Central Intelligence Organisation, so the specific charge was contravening section 31(a)(iii), the part of section 31 dealing that particular type of prejudice to the State. [Note: The accused have all along denied that anything in the articles in question was false.]

On 30th July 2009, before the case against the journalists and their newspaper started, the presiding magistrate referred the constitutionality of section 31(a)(iii) of the Code to the Supreme Court, and the case was argued there on 3rd June 2010. The accused asked the court to declare that the provision was void as being inconsistent with the freedom of expression guarantee in section 20 of the former Constitution. The prosecution defended the provision as constitutional. The court reserved judgment and retained control of the already-argued case under the transitional provisions of the new Constitution in May 2013. Judgment was eventually handed down, by the Supreme Court, on 30th October 2013, more than three years after the case had been argued.

Apology for delay in judgment Justice Malaba apologised for the delay in giving judgment, attributing it to “the fact that reasons for judgment in the case of Jestina Mukoko v The Attorney-General SC-11-12 had to be given first”.

Note: Jestina Mukoko, a prominent human rights activist, was one of the 2008 abductees mentioned above. The case referred to by Justice Malaba is the one Mrs Mukoko took to the Supreme Court, alleging State violation of her constitutional rights by her abduction by State agents and her treatment by them during the period she was “disappeared”. That case was argued in the Supreme Court 25th June 2009 and the court unanimously ruled in her favour on 28th September 2009, with a brief order granting her a perpetual stay of prosecution on criminal charges that were based solely on a statement extracted from her by State agents by means of torture and inhuman and degrading treatment. The court said its reasons for judgment would come later. Three years later these reasons for judgment were released, on 20th September 2012. Another 13 months passed before delivery of judgment in the present case on 30th October 2013.

Comment: It is hard to see why the reasons for judgment in the Jestina Mukoko case had to be given first when the court’s unanimous decision in that case had already been announced some three years before those reasons were given. This means the court had reached sufficient consensus on the facts and the law to grant its final order in her favour on 28th September 2009. And the further 13 months’ delay between the Mukoko reasons for judgment on 30th September 2012 and this judgment on 30th October 2013 seems unduly long.

Summary of the judgment of 30th October 2013 This was written by Deputy Chief Justice Malaba. Chief Justice Chidyausiku and Justices Ziyambi, Garwe and Cheda concurred. [Judgment No. SC 14/2013 is available from the addresses given at the end of this bulletin]. The judgment, citing UN texts and decided cases from the United States, Canada and India, as well as a leading Zimbabwean Supreme Court decision written by Chief Justice Gubbay in the Chavunduka case in 2000, explains the importance of freedom of expression, why it must be constitutionally protected, why it is not an absolute or unqualified right, why the mere fact that a statement is false does not disqualify it from the Constitution’s protection, and why criminalising the making of a statement in principle constitutes an interference with freedom of expression. This clears the way for the consideration of the main question in the case: whether this interference was permitted by section 20(2) of the former Constitution, which permits freedom of expression to be restricted by or under a “law” that is made to protect certain specified objectives [e.g. public safety, public order, public health], but only if the restriction is “reasonably justifiable in a democratic society”.

The court considered this question in the three stages that are customarily followed in such cases, according to long-established precedent.

1. Was the restriction constituted by a “law”? Yes. The court rejected a defence contention that section 31(a)(iii) was too vague and uncertain to be accepted as a law.

2. Did section 31(a)(iii) have a constitutionally permissible objective? Yes. The court said the provision was obviously intended to protect “the interests of public order and the preservation of public safety”.

3. Was the restriction reasonably justifiable? No. The court, having weighed up the legal arguments from both sides and decisions in other cases, concluded that section 31(a)(iii) went beyond what was necessary and proportionate to the achievement of its legitimate objective. Several factors prompted this conclusion, including the overbroad scope of the provision, its “chilling effect” on legitimate speech and the draconian punishment of up to 20 years imprisonment.

But the court invited submission from Minister of Justice This judgment did not, however end the case, because the Minister responsible for the Code, the Minister of Justice, Legal and Parliamentary Affairs, had not been a party to the case and was therefore entitled, under the former Constitution, to an opportunity to provide the court with evidence that the infringement was reasonably justifiable in a democratic society. So the court called on the Minister, in terms of section 24(5) of the former Constitution, to show cause to the Constitutional Court on 20th November, if he so wished, why section 31(a)(iii) of the Code should not be declared void. This in effect transferred the case to the Constitutional Court for final disposition. [Note: There has been understandable public confusion about this court order, and the effect of section 24(5) of the former Constitution in this and other cases. See the end of this bulletin for an explanation of why the court, having expressed apparently definite views on the unconstitutionality of a statutory provision, nevertheless gave the Government a second chance to persuade it to reach the opposite conclusion.]

Minister’s response to the court’s order At the November hearing, the Minister submitted a document criticising the legal reasoning in the court’s judgment, but failed to provide any evidence of factors, not previously brought to the court’s attention, which might have shown that the provision was in fact so justifiable, which was what the court had envisaged. The court granted a postponement. Finally, on 15th January 2014, the court was informed that the Minister no longer opposed an order declaring section 31(a)(iii) unconstitutional and void. This really ended the case in favour of the journalists, but the court delayed handing down its order, because it wanted to clarify section 24(5) of the former Constitution.

Court’s decision of 22nd July nullifying section 31(a)(iii) The court’s brief final judgment was issued on 22nd July. It ended with an order declaring section 31(a)(iii) of the Criminal Law Code in contravention of section 20(1) of the former Constitution and therefore void. The Minister was ordered to pay the journalists’ costs. [Judgment No. CCZ 6/2014 is available from the addresses given at the end of this bulletin]. At last, almost five years after first challenging the constitutionality of section 31(a)(iii), Mr Chimakure and Mr Kahiya could claim a definitive victory in their six-year struggle. Neither they nor anyone else can now be prosecuted for contravening that provision.

Reason for Inviting Minister’s Submission

Section 24(5) of the former Constitution catered for the situation in which a statutory provision is challenged in the Supreme Court and in which the Minister responsible for the Act or statutory instrument has not been a party to the proceedings; for example, a case between two individuals and/or organisations, or a case such as the present in which the dispute was between accused persons and the State in the person of the Attorney-General. If, after argument in this sort of case, the court considers the challenged provision to be not reasonably justifiable in a democratic society, it must give the responsible Minister the opportunity of producing proof to its satisfaction that the provision is reasonably justifiable.

As the court put it in its final judgment in this case on the 22nd July, the Minister is given ”an opportunity to put before the court facts within his or her knowledge, and of which the court was unaware, with the view of persuading it not to find that the enactment is not reasonably justifiable”. The court will thereafter reject any attempt by the Minister to reactivate the legal argument.

This is so even if the Court thinks that it may not be possible for the Minister in the particular circumstances of the case to produce any proof which might satisfy the court. This was laid down many years ago by Chief Justice Beadle, referring to the equivalent of section 24(5) in the 1961 Constitution. In other words, section 24(5) recognises the possibility, however remote, that the responsible Minister, backed by his or her Ministry’s knowledge of the legislation and the reasons for it, may be able to put up a reasonable justification for the provision that has not occurred to the court or the other parties.

There is no provision equivalent to section 24(5) in the present Constitution. The present Constitution leaves it to an Act of Parliament or the rules of court to regulate the procedure for dealing with cases in the Constitutional Court. No Act and no new rules of court have yet been enacted. The perceived need catered for by section 24(5) and its predecessors could probably be satisfactorily dealt with by a different procedure – preferably one less likely than section 24(5) to cause delays and, as happened in the present case, provoke confusion and premature excitement over a provisional conclusion that might possibly be overturned later. It remains to be seen what is produced by those responsible for devising the procedure for Constitutional Court cases.

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