Defamation ruling

via Defamation ruling: Media relieved – The Standard. 15 July 2014 by Phillip Chidavaenzi

The Standard newspaper has over the years, been haunted by an intolerant government that does not take criticism kindly.

Several of its journalists courted the wrath of the authorities as they sought to hold those in public office accountable
One of the journalists, former editor of The Standard, Nevanji Madanhire (now NewsDay editor), was arrested after businessman-cum-politician Munyaradzi Kereke, founder and chairman of Green Card Medical Aid Society, claimed that he and former Standard reporter Nqaba Matshazi had criminally defamed him.

Madanhire and Matshazi were arrested and charged under Section 96 of the Criminal Law (Codification and Reform) Act in November 2011 after Kereke complained the newspaper had published falsehoods intended to cause serious harm to his reputation and that of the medical aid society.

The two challenged criminal defamation in the constitutional court and last week won their case.

The Constitutional Court (ConCourt) ruling has turned out to be a landmark judgement decriminalising defamation and in the process clearing the duo.

The ConCourt bench made up of Justices Godfrey Chidyausiku, Luke Malaba, Vernanda Ziyambi, Elizabeth Gwaunza, Anne-Marie Gowora, Ben Hlatshwayo, Bharat Patel and Antoinette Guvava ruled that “the offence is not reasonably justifiable in a democratic society and is inconsistent with the freedom of expression guaranteed in the constitution”.

In delivering the judgement, the ConCourt also called on Justice minister Emmerson Mnangagwa to reform the Criminal Law (Codification and Reform) Act.

“Having regard to all of the foregoing, I take the view that the harmful and undesirable consequences of criminalising defamation, viz the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect,” reads the judgement.

“Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat mischief of defamation . . . in short, it is not necessary to criminalise defamatory statements.”

Constitutional lawyer Chris Mhike said the judiciary had taken a big step in bringing the legal system in line with international standards.

“This is a giant step towards aligning the legal system with regional and international contemporary standards. It is clear that criminal defamation is unconstitutional and can be resolved through the civil courts,” Mhike said.

Media Institute of Southern Africa (Misa) Zimbabwe director Nhlanhla Ngwenya said the ConCourt ruling reinforced the claim that criminal defamation was unconstitutional.

“Misa-Zimbabwe therefore urges the speedy auditing of laws such as the Access to Information and Protection of Privacy Act [Aippa], Broadcasting Services Act, Censorship and Entertainment Controls Act and Interception of Communication Act by the inter-ministerial committee to ensure compliance with the new constitution,” Ngwenya said in a statement.

In June 2011, Madanhire and senior reporter Patience Nyangove were arrested over the newspaper’s lead story headed MDC-T fears for missing Timba’s life.

Jameson Timba, who was the Minister of State in then Prime Minister Morgan Tsvangirai’s Office had been detained and later released following a High Court order to that effect.

Madanhire and Nyangove were charged with criminal defamation under Section 96 of the Criminal Code and with the publication of false statements prejudicial to the State which undermine public confidence in a law enforcement agent under Section 31 (A) (iii).

Allegations were that it was falsely reported Timba had been arrested by police officers who included a senior police officer who said he was not present nor involved in the arrest.

In December 2009, the then Standard editor Bornwell Chakaodza (now late) and reporter Valentine Maponga were arrested under harsh media laws relating to publishing falsehoods.

They were picked up by the police over a story suggesting government officials plotted the murder of Bindura Nickel chief executive Leonard Chimimba.

Chimimba died at a private Harare hospital of a gunshot wound to the back of his head. He was found lying in a pool of blood next to his vehicle by the gate of his house.

But perhaps the most disturbing case was that of former Standard editor Mark Chavunduka (now late), who was tortured after reporting on an alleged coup plot against President Robert Mugabe.

Together with his Chief Reporter, Ray Choto, Chavunduka was held captive by the army for several days in 1999 despite court orders for their release.