Daniel Nemukuyu Senior Court Reporter—
Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa has said the Constitutional Court judgment declaring criminal defamation as undemocratic only related to the old Constitution and that the law should remain until it has been condemned in terms of the new supreme law. Minister Mnangagwa said he had no objections to the striking down of criminal defamation in terms of the old Constitution.
Minister Mnangagwa said the judgment clearly stated that Section 96 of the Criminal Law (Codification and Reform) Act was in contravention of Section 20(1) of the former constitution, hence in the absence of a judgment relating to a section of the new Constitution, the law should not be removed from the statutes.
He stated that in an affidavit he filed on July 21 this year responding to the court’s call for him to defend the criminal if he so wished before the criminal defamation was finally struck down.
“I have, however, noticed that the matter related only to a provision of the former Constitution and that at pages 16 and 17 of its cyclostyled judgment, this honourable court expressly pointed out that the issue of the constitutionality of the said section 96 of the Criminal Code in terms of the current Constitution had not been considered.
“The judgment also made it clear that the constitutionality of Section 96 of the Criminal Code vis-a-vis the current constitution will only be tested once an appropriate case is brought before this honourable court for determination.
“It is, therefore, my respectful submission that until such a case is brought, this honourable court is not under any obligation to strike down the provisions of Section 96 of the Criminal Code.
“The provisions of that Section 96 should, therefore, continue to exist under the Criminal Code,” said Minister Mnangagwa.
However, the minister has agreed with the court that the law was indeed in breach of Section 20(1) of the former constitution and left the court to make its final determination on whether or not to remove the law from the statutes.
Minister Mnangagwa said he had no basis to oppose the court’s finding on that issue.
“I wish to advise this honourable court that I have no cause to show why Section 96 of the Criminal Law (Codification and Reform) Act should not be declared to be in contravention of Section 20(1) of the former Constitution,” he said.
“As such, this honourable court may proceed to finalise the above matter in any way that it deems fit.”
The Constitutional Court last month 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.
The court invited Minister Mnangagwa to defend the law if he so wished, before a final declaration was passed.
The Constitutional Court ruled against the law in a case brought by former Standard newspaper editor Nevanji Madanhire and reporter Nqaba Matshazi, who were being charged with criminally defaming Green Card chairperson Dr Munyaradzi Kereke.