Minister Moyo somersaults on criminal defamation

via Minister Moyo somersaults on criminal defamation – The Zimbabwean 10 March 2015

The Minister of Media, Information and Broadcasting Services Professor Jonathan Moyo who is on record denouncing criminal defamation on 9 March 2015 somersaulted on his earlier assertions defending the law in question as constitutional.

This came after the government filed its opposing affidavit against the application by MISA-Zimbabwe and senior Zimbabwean journalists urging the Constitutional Court to declare Section 96 of the Criminal Law (Codification and Reform) Act which deals with criminal defamation unconstitutional.

The Attorney General Prince Machaya who is the third respondent in the matter, said he had, been instructed to file the opposing affidavit by the Minister of Justice, Legal and Parliamentary Affairs Emmerson Mnangagwa and Professor Moyo who are the respective first and second respondents in the matter.

Professor Moyo is on record as recently as 22 February 2015 declaring in his facebook posting that criminal defamation is” dead” after the Constitutional Court struck down Section 96 in terms of the old constitution.

“Surely, this very clear declaration must legally mean that criminal defamation was, as it is, unconstitutional right from the beginning.

“A law that was unconstitutional from the beginning, and which has been declared as such by the Constitutional Court, cannot suddenly spring into new life by dint of a new Constitution,” he said then.

The government is arguing that Section 96 seeks to protect the right to human dignity as required by Section 51 of the Constitution through criminalising defamation.

“Criminal defamation is therefore a necessary restraint to the rights of freedom of expression and freedom of the media.

“In the circumstances, I humbly submit that the criminalisation of defamation is a reasonable and justified limitation to the right of freedom of expression in an open and democratic society,” argues the Attorney –General urging the court to dismiss the application.

Meanwhile, in its application filed by lawyer Chris Mhike, MISA-Zimbabwe argues that Section 96 is unconstitutional as it does not comply with Sections 61 and 62 of the Constitution and should be struck off.

Sections 61 and 62 protect the right to freedom of expression, media freedom and access to information.

MISA-Zimbabwe is the first applicant while journalists Nqaba Matshazi, Sydney Saize and Godwin Mangudya, are the second, third and fourth respective applicants in the matter. The fifth applicant is Roger Deane Stringer an independent publishing consultant.

MISA-Zimbabwe argues that if the law in question was declared unconstitutional under the old constitution, there is even greater justification for it to be struck off in terms of the new constitution.

This being the case because the provisions for freedom of expression and media freedom under the old constitution were even “weaker or narrower” compared to the ones protected under the new dispensation.

background

MISA-Zimbabwe’s application follows the Constitutional Court’s ruling that criminal defamation is still operative and that the law in question had only been struck off in terms of the old constitution.

Constitutional Court judge Justice Bharat Patel issued the declaration order on 19 February 2015 concurring with Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa’s submissions that judgment in the case of former Standard journalists Nevanji Madanhire and Nqaba Matshazi, was only made in the context of the old constitution.

In June 2014, Madanhire and Matshazi successfully applied for permanent stay of prosecution on charges of contravening section 96 of the Criminal Law (Codification and Reform) Act.

The finding was made on 12 June 2014 in a Constitutional Court judgment delivered by Justice Bharat Patel, with the full concurrence of Chief Justice Godfrey Chidyausiku and Justices Malaba, Ziyambi, Gwaunza, Garwe, Gowora, Hlatshwayo and Guvava, in terms of Section 20 (1) of the former constitution which dealt with freedom of expression.