Nduduzo Tshuma Bulawayo Bureau
Information, Media and Broadcasting Services Minister Professor Jonathan Moyo has said the view that criminal defamation remains valid as a result of last Thursday’s Constitutional Court declaration is both untenable and unsustainable.According to reports last week, the Constitutional Court clarified that it’s celebrated judgment of 2014 only ruled the law to be in violation of the old constitution and not the new supreme law.
The highest court in the land, through Justice Bharat Patel, issued a declaratory order that agreed with Justice, Legal and parliamentary Affairs Minister Emmerson Mnangagwa’s submissions that the judgment in the case of Standard journalists Nevanji Madanhire and Nqaba Matshazi was made only in relation to the old constitution.
The judgement in question was issued in a case in which former Standard Editor Madanhire and reporter Matshazi, who were charged with criminally defaming Green Card chairperson Dr Munyaradzi Kereke, decided to contest the law’s constitutionality.
In July last year, the Constitutional Court unanimously ruled that Section 96 of the Criminal Law (Codification and Reform) Act must be struck off the statutes because it was not a justifiable law in a democratic society like Zimbabwe.
“I believe that in the same way one cannot subscribe to the right to life and support the death penalty without suffering a fatal contradiction, one cannot subscribe to freedom of expression and in the same vein support criminal defamation,” said Prof Moyo.
“In my respectful consideration, criminal defamation is not only unconstitutional, it is also uncivilised.”
Prof Moyo said he has been trying hard but failed to understand how, “it can be said that Criminal Defamation, that is section 96 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), remains a valid offence in our laws when the Constitutional Court has ruled — in a matter that commenced before the new Constitution came into effect — that this section is inconsistent with and in contravention of section 20(1) of the former Constitution.”
“Surely, the import of last week’s declaration by the Constitutional Court in a 2012 case whose cause of action was in 2011, that Criminal Defamation violated the former Constitution well before the new Constitution came into effect, must necessarily be that section 96 of the Criminal Law (Codification and Reform) Act is null and void ab initio.”
Prof Moyo said it can’t be constitutionally correct to say that, although criminal defamation violated the former Constitution right from the beginning or from the time it was enacted into law, it is nevertheless still valid as an offence because it has not been tested against the provisions of the new Constitution.
“Such an argument is wholly untenable because it is tantamount to saying that the new Constitution has the force and effect of resurrecting dead laws. A new constitution does not and cannot make law.
“Only Parliament can make laws. In accordance with the well established jurisprudential principle of the separation of powers, the courts only interpret the law made by the people through their legislature for implementation by the government of the day.
“As such, when a law is declared by the Constitutional Court to be inconsistent with and in contravention of the Constitution, as has happened to the law of criminal defamation in relation to the former Constitution, then that law is dead. Full stop.”
Prof Moyo said it was important to note that as originally set out before the Constitutional Court, Madanhire and Matshazi “clearly and unambiguously sought to have the offence of criminal defamation as defined in section 96 of the Criminal Law Code to be declared unconstitutional and struck down as being null and void, right from the beginning.
“Furthermore, it is equally important to note that the same relief, to have criminal defamation declared null and void ab initio, was sought by Mr E Morris — the Advocate of the applicants — during the hearing of the matter in the Constitutional Court.” Prof Moyo said, in the circumstances, the relief was then modified and confined by the Constitutional Court to “the permanent stay of prosecution” of Nevanji and Matshazi.
“In my respectful view, it was wrong and unnecessary for the Constitutional Court to fall short of declaring criminal defamation null and void and to therefore strike it down on controversial and indeed misplaced grounds that ‘. . . the application in its original form did not address the relevant provisions of the new Constitution.’
“In my respectful view, there are three fundamental considerations that separately and together render the position taken by the Constitutional Court on the validity of criminal defamation to be plainly wrong and unhelpful to the cause of justice,” said Prof Moyo.
He said it was impossible to see and understand how the original application made in 2012 by Madanhire and Matshazi could have “addressed the relevant provisions of the new Constitution.”
“It is trite to point out that there was no new Constitution when the two made their original application in 2012. The new Constitution was put to a referendum as a draft on 16 March 2013,” said Prof Moyo.
“After its endorsement by that referendum, it was published on May 22, 3013 when chapters 3 & 4 as well as parts of chapters 5, 6, 7, 8, 9, 12 & 14 came into operation along with section 208. The rest of the new Constitution took effect on August 22, 2013 when President Mugabe was inaugurated after his July 31st 2013 electoral landslide.”
Prof Moyo said he could not see how the form of the original application made in 2012 could address a then non-existent constitution whose existence only came in 2013.
“In the second place, it is my respectful view that the Madanhire and Matshazi case on criminal defamation should have been determined on the basis of the original relief that they sought under the former Constitution without any reference whatsoever to the new Constitution,” said Prof Moyo.
He said it was his belief that it was quite clear from paragraphs 8 and 9 of its Sixth Schedule that, save for non-constitutional cases, the new Constitution does not provide that constitutional matters that were commenced before the new fundamental law of the land came into effect must be dealt with in terms of the new Constitution.
“Quite the contrary, the new Constitution provides that pending constitutional cases that were commenced before the new Constitution became operational must be finalised in terms of the former Constitution,” said Prof Moyo.
“As such, the observation by the Constitutional Court that ‘the application in its original form did not address relevant provisions of the new Constitution’ is contrary to the letter and spirit of paragraphs 8 and 9 of the Sixth Schedule to the new Constitution.
“In the third place, the real and very important declaration of the Constitutional Court made on February 19, 2015 was as follows:
‘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.’
“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.”