Source: Sunday Mail trio turns to Concourt | The Herald August 16, 2016
Fungai Lupande Court Reporter
The Sunday Mail editor Mabasa Sasa, investigations editor Brian Chitemba and reporter Tinashe Farawo, accused of communicating falsehoods, yesterday applied for referral of their matter to the Constitutional Court.
The trio’s lawyer Advocate Fadzayi Mahere submitted that at no circumstances should the media be required to disclose or authenticate the source of their information.
Harare magistrate Mr Tendai Mahwe advised Advocate Mahere to make oral submissions and call a witness who would be cross-examined by State.
“This prosecutor (Mr Peter Kachirika) is not the one seized with the matter. The defence can lead evidence from their witness and the prosecutor Ms Francesca Mukumbiri will take over,” said Mr Mahwe.
However, Advocate Mahere said there was no need to lead evidence from a witness because the court’s ruling dismissing the accused’s application for discharge was the basis of the Constitutional Court application.
In their application, Advocate Mahere said by requiring the accused to “explain the basis upon which they wrote the article,” the court was demanding the trio to reveal their source of information.
“There can be no doubt that unless the accused state their source, they will be found guilty of the offence,” read the application.
“The article only states that an assistant commissioner is under investigation but it does not state by whom such investigation is being conducted.
“To ask the accused to explain the basis of their statement directly violates their constitutional right to freedom of expression and freedom of the media.
“Section 61(1)(a) of the Constitution permits the accused to seek, receive and communicate information.
“To prosecute them for exercising this fundamental right is unconstitutional and unlawful.
“Under no circumstances should the media be required to disclose or authenticate the source of their information.
“Section 61(4) proceeds to place an obligation on the State media to be impartial and report all matters including those that cast the executive in a bad light.”
The matter was postponed to September 5. The trio is facing charges of communicating or publishing false statements prejudicial to the State.
It is alleged that following the killing of 22 elephants by poachers using suspected cyanide poison, the accused published a story, “Top cop fingered in poaching saga”.
It is alleged that the trio knew that no assistant commissioner of the police was being investigated for being involved in the poaching of the elephants nor has ZRP made any arrest in connection with the crime.
Resultantly, the publication of the alleged false statement was communicated nationally and internationally causing an outcry from the international community who support tourism industry.
COMMENTS
The suggestion by the defence is that journalists can fabricate stories at will and are untouchable in terms of the constitution. The journalists should not be required to disclose the source of whatever they have written – only to establish that it is accurate, and how they go about that is their problem.
The fact is that we are tired of reading rubbish published by both the State and private press.
In 1988 senior assistant commissioner John Chademana was arrested and convicted along with Inspectors Ncube and Chengeta (Chengeta, though removed from the force is mysteriously back now as a senior assistant commissioner) for poaching a buffalo.
Following that senior assistant commissioner Changara was investigated for poaching in Battlefields and Featherstone but was never charged because the AG ordered the docket (which never again saw the light of day) surrendered to the police commissioner for “further investigation”. Changara was the president’s aide de camp and nephew.
So the ZRP has a track record of top brass involved on poaching no surprises there.
Why isn’t this person’s identity simply leaked so it can be.pursued?