Confusion over ruling against criminal defamation

By Tererai Karimakwenda
SW Radio Africa
01 August, 2014

A media monitoring group in Zimbabwe has warned the media community to be cautious about celebrating a recent ruling by the Constitutional Court, which freed two journalists accused of criminal defamation under the controversial Criminal Law Act.

In a warning in their newsletter on Thursday, the Media Monitoring Project Zimbabwe (MMPZ), said they had noted celebrations by media practitioners after the court on July 22nd declared criminal defamation was unconstitutional because it violated individual rights enshrined in the constitution.

Many headlines used the words “struck off”, “nullified”, “voided” or “scrapped” in relation to the Court’s action. But the MMPZ warned that the ruling applied only in relation to the old constitution, and the new one has still not been tested.

The ruling by Deputy Chief Justice Luke Malaba, related to a case in which Alpha Media Holdings’editor-in-chief, Vincent Kahiya, and the former news editor of the weekly Zimbabwe Independent, Constantine Chimakure, had challenged the constitutionality of a section of the Criminal Code.

This followed the publication of a story in 2009, which named state security agents alleged to have abducted and tortured political and human rights activists in 2008. The state accused the pair of undermining public confidence in law enforcement agents, and prosecuted them using a section of the Criminal Law Act.

According to the MMPZ, Justice Malaba noted at the time that the ruling applied to the old constitution and has no relevance to the new one adopted last year. No case has come before the courts challenging this Criminal Act under the new constitution.

Blessing Vava from the pressure group Committee of the People’s Charter, said this confusion demonstrates how chaotic the law is currently, with ZANU PF deliberately delaying the re-alignment of laws to the new constitution.

“If you check the way they operate it seems that they are using both constitutions. They look for things that are favourable to them in the old constitution and look for what favours them in the new one. We have seen judgements since the beginning of the year that favour ZANU PF. The judges we have are not reflective of an independent judiciary,” Vava told SW Radio Africa’s Reporters Forum programme.

He added that there is no political will to move forward and re-align the current laws to the new constitution, which was also drafted through a flawed process.

The MMPZ said: “Such confusion in our judicial system graphically illustrates the urgent need to reform all laws that conflict with the provisions of the new Constitution and especially those affecting freedom of expression and the practice of journalism.

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