This article explains how the Constitutional Court of Zimbabwe (hereafter, “the Court”) got itself into a legal tangle over the law of criminal defamation and how this has resulted in a cloud of uncertainty over whether or not criminal defamation is still an offence in Zimbabwe.
In this article, I argue that the Court proceeded on two fundamental errors of law, which could have been avoided. It is these flaws that led it to the conclusion that the criminal defamation laws were invalid under the old Constitution but somehow left room for argument that they could still be legal under the new Constitution. In effect, the Court killed the criminal defamation with one hand, but erroneously tried to give it the kiss of life at the same time.
The confusion over the law of criminal defamation arises principally from two judgments delivered by the Court in the case of Madanhire and Another v The Attorney General. The two journalists had been charged with the offence of criminal defamation in terms of s. 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereafter, “the Criminal Code”).
They challenged this provision, arguing that it was unconstitutional. At the time of their challenge, in 2011, the old Constitution was still in operation. However, when the Court made its decision, and presumably, when it heard the arguments, the new Constitution adopted in 2013, was now in force.
Nevertheless, despite the existence of the new Constitution, the Court proceeded to make its decision on the basis of the old Constitution and found, in the applicants’ favour, that the criminal defamation provisions were in contravention of s. 20 guaranteeing the freedom of expression.
The Court reasoned that the offence of criminal defamation was unconstitutional as it was not reasonably justifiable in a democratic society. The Minister of Justice was given an opportunity to defend the constitutionality of the criminal defamation provisions.
The Minister decided not to contest the Court’s findings and accordingly, the Court duly confirmed its decision that the criminal defamation provisions were unconstitutional. The declaratory order of the Court states as follows, in the relevant part, “It is declared that s 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is inconsistent with and in contravention of s 20(1) of the former Constitution”.
In normal circumstances, this would render the criminal defamation provisions constitutionally invalid. The State would have to comply with the Court’s judgment to ensure constitutional compliance. We would now be saying without equivocation that criminal defamation has been outlawed in Zimbabwe.
However, the Court was at pains to emphasise that this declaration of invalidity was under the old Constitution and incredibly, left open the possibility that the same provisions could be held to be valid under the new Constitution. The learned judge said, “What has not and need not be considered for present purposes is the validity of that offence within the framework of the new Constitution. What I would simply note at this stage is that the freedom of expression and freedom of the media as secured by s. 61 of that Constitution are framed differently in several material respects”.
Further, he adds that, “It might also be argued that the offence of criminal defamation is a justifiable limitation on the freedom of expression as envisaged by s 86 of the new Constitution”.
But how could provisions that the Court had just outlawed under the old Constitution be said to have the possibility of being legal under the new Constitution? If the Court found that criminal defamation was outlawed under the old Constitution, on what basis did it have to venture to suggest that the provisions could be legal under the new Constitution when that question was never placed before it?
How could it be that the criminal defamation provisions, having been killed by the Court under the old Constitution have, somehow, resurrected, under the new Constitution? This would be odd but this is precisely what the Court seems to suggest in its judgment.
The effect of the unnecessary qualification is essentially to suggest that while the Court declared criminal defamation provisions to be unconstitutional under the old Constitution, there is still room for the resurrection of the same provisions under the new Constitution. The logic of this is hard to understand and is not supported by law and I turn now to deal with this.
The Death of Criminal Defamation
Here we must examine the state of the law of criminal defamation under the old Constitution, in light of the Court’s judgment that the provisions of the Criminal Code were unconstitutional, a position accepted without contest by the Minister.
The Court made its decision in accordance with the old Constitution on the basis that it was the applicable law. In terms of that standard, the Court found that the criminal defamation provisions were unconstitutional.
Therefore, taken to its logical conclusion, at the time that the old Constitution was repealed, there was, technically, no constitutionally valid law on criminal defamation in Zimbabwe. It was outlawed by the Court because it contravened s. 20 of the old Constitution. This is the effect of the Court’s decision of 2014.
Now, to know what the state of the law in Zimbabwe was when the new Constitution came into force, we must look at s. 192 of that Constitution. It states as follows:
“The law to be administered by the courts of Zimbabwe is the law that was in force on the effective date, as subsequently modified”.
The effective date is the date on which President Mugabe assumed office after the July 31 elections. What therefore was the law of criminal defamation on the effective date, if we apply the Court’s decision made in accordance with the old Constitution?
According to the Court’s judgment, criminal defamation provisions were unconstitutional and invalid, a position accepted by the Minister. The implication of this is that as at the effective date of the new Constitution, there was no valid law on criminal defamation in Zimbabwe. On that basis alone, it is illogical to suggest, as the learned judge does, that the criminal defamation provisions might still have to be tested under the new Constitution. Logic says you cannot test something that no longer exists.
If the Court has declared a law to be unconstitutional in terms of the old Constitution, on what basis can the same provisions be revived so that they have to be tested again under the new Constitution? If this reasoning were correct, it would lead to an absurd situation in which all the laws previously declared unconstitutional by the Supreme Court of Zimbabwe under the old Constitution can legitimately be invoked by the State under the new constitutional dispensation until they are challenged and judged by the Court in accordance with the new Constitution. This would not make sense.
The fact is that once the Court declared that criminal defamation unconstitutional under the old Constitution and the State accepted it, it died there and it could not resurrect to be tested again under the new Constitution.
But there is a second and bigger flaw with the judgment of the Court, to which I must now turn.
The fundamental flaw in this matter is that the Court makes its determination of the constitutionality of the criminal defamation provisions in terms of the old Constitution, when it should have used the new Constitution as the measuring standard.
The reason offered by the learned judge for using the old Constitution as the measuring standard for constitutional compliance is that, “it was observed by the Court that the application in its original form did not address the provisions of the new Constitution …”
This, in my respectful opinion, is the point at which the Court began to lose its way and got into the tangle that has caused confusion. After the new Constitution came into force, the Court was under an obligation to construe the criminal defamation provisions in accordance with the new Constitution. This is so because the new Constitution clearly demands it.
S. 10 of the Sixth Schedule of the new Constitution deals with this situation. It provides for the continuation of existing laws and provides that those laws must be construed in conformity with the new Constitution. Its exact words are as follows:
“Subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution”.
This provision was designed to perform at least two specific roles:
First, it is known as a saving provision, in that it saves all laws that existed before the new Constitution became effective. In other words, it does not mean all laws in existence before the new Constitution became invalid when it came into force. This was a necessary provision to prevent a legal vacuum that would have resulted and made the country ungovernable.
This is why all laws before the new Constitution survived and also why the Government is presently in the process of realigning the existing laws, so that they can satisfy the requirements of the new Constitution. In some cases, such as where dual citizenship was prohibited, the Court intervened early on when asked to do so, and declared those provisions unconstitutional thereby leading to judicially-inspired realignment of laws.
Second, it ensures that whenever the existing laws are being interpreted and applied, they must be interpreted in accordance with the standards set by the new Constitution. To construe is to interpret and ascribe a meaning to the existing laws. This provision directs that the meaning of existing laws must be in conformity with the new Constitution. This is why when Mutumwa Mawere challenged the prohibition of dual citizenship in 2013, those citizenship laws were judged in accordance with the new Constitution. The laws were still valid until they were challenged.
The overall effect of the s. 10 can be simply stated: all existing laws continue to operate, but they must be interpreted in compliance with the new Constitution. In other words, you do not interpret or judge them in accordance with the old Constitution. Yet, this is precisely what the Court proceeded to do in this case. It proceeded to construe the criminal defamation provisions according to the standards of the old Constitution and not in accordance with the new Constitution as is required by s. 10 of the Sixth Schedule.
Notably, when the Court made its decision, the old Constitution had been specifically repealed in terms of s. 4 of the Sixth Schedule of the new Constitution which states that, “Subject to this Schedule, the former Constitution is repealed with effect from the effective date”. The Court was effectively measuring the criminal defamation provisions against a non-existing law, an academic exercise and something that s. 10 of the Sixth Schedule had tried to prevent.
Under the terms of s. 10 of the Sixth Schedule, the criminal defamation provisions were clearly “existing law” on the effective date and continued to operate after the effective date. This is why the journalists were still charged with the offences of criminal defamation. Since they were challenging the continuing violation of their rights, those rights were no longer under a repealed old Constitution but under the new Constitution. Once the new Constitution came into force, the criminal defamation provisions had to be construed in accordance with the new Constitution, and not with the old Constitution, as the Court did.
The Court erred, in my opinion, when it construed the constitutionality of the criminal defamation provisions according to the standards of the old Constitution when s. 10 of the Sixth Schedule specifically directs that all existing laws must be construed in accordance with the new Constitution.
The Court had options but it seems its attention was not drawn to the Sixth Schedule which contains the transitional provisions. The makers of the Constitution contemplated that there would be cases pending before old Supreme Court on the effective date and made provision for how such matters would be dealt with when the new Constitution came into force.
A “pending constitutional case” is defined in s. 18(1) of the Sixth Schedule and this matter falls within the definition provided in that provision. For example, s. 18(1)(a) defines it as “an appeal, application or reference in which an alleged contravention of the Declaration of Rights contained in the former Constitution is in issue … which, immediately before the effective date, is pending before the Supreme Court of Zimbabwe constituted under the former Constitution”.
Further, s. 18(7) provides for how such pending constitutional matters are to be dealt with under the new constitutional dispensation. Cases where argument had not started before the effective date must be transferred to the Constitutional Court. This was presumably one such case.
As to how the Court would deal with the matter, my view is that it could have taken a flexible approach in accordance with s. 85 of the Constitution to enable it to comply with s. 10 of the Sixth Schedule and construe the criminal defamation provisions in conformity with the new Constitution.
S. 85 permits the Court room to have flexibility and to dispense with formalities in handling matters concerning the Declaration of Rights. It says, in relation to Court rules that, “(b) formalities relating to the proceedings, including their commencement, are kept to a minimum; (c) the court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities …”
The procedural technicalities that the application had been launched under and in terms of the old Constitution and the fact that the challenge had been addressed in regard to its provisions, could have been quite easily adapted by calling upon the parties to amend their arguments to address the challenge in terms of the new Constitution. This would have ensured that the Court would have complied with s. 10 of the Sixth Schedule requiring it to construe existing laws in conformity with the new Constitution.
As it happened, the Court, with all nine learned judges in agreement, went on to construe the criminal defamation provisions in accordance with the old Constitution and not, as is required by s. 10 of the Sixth Schedule, in accordance with the new Constitution. Hence the resulting confusion, with journalists not knowing whether or not criminal defamation is still part of the law.
But, as I have argued in this article, the Court erred and once it declared that the criminal defamation provisions were unconstitutional under the old Constitution, they cannot be resurrected under the new Constitution. In any event, the same powerful reasons given by the learned judge against criminal defamation apply with equal force under the new Constitution. The new Constitution was designed to be an improvement upon freedoms and it is inconceivable that a right that was wide under the old Constitution could now be construed to be narrower under the new Constitution. Sadly, the Court lost a good opportunity to settle the law with finality.