Daniel Nemukuyu Senior Court Reporter
The Constitutional Court has ordered Media Institute of Southern Africa and the Government to file supplementary heads of argument on whether or not criminal defamation was still valid law in light of the judgment that declared it unconstitutional in terms of the former Constitution.
Chief Justice Chidyausiku also ordered the parties to state in their papers whether or not the matter of the validity should be heard now or the courts should simply wait for the arrest of another journalist to act and make determination on the validity of the law.
The Chief Justice postponed indefinitely the case in which MISA is seeking the removal of criminal defamation from the statutes to allow the parties to file their arguments.
“The matter is hereby postponed sine die to enable the parties to address the court on the following points before the matter is heard on the merits:
1. loci standi, in particular whether or not the case is ripe for determination
2. Whether, In light of the decision of this court in the Madanhire (Nevanji) case, Section 96 (of the Criminal Law Codification and Reform Act) is still valid law,” Chief Justice Chidyausiku said.
The postponement was also necessitated by Government lawyer Ms Venranda Munyoro who requested time to prepare arguments on the two points raised in the matter.
In the Madanhire case, Section 96 of the Code, which criminalises defamation was declared invalid and in violation of the old Constitution but the court did not rule on its validity in terms of the current supreme law.
That prompted MISA to file a fresh application seeking the striking down of the legislation in terms of the new Constitution.
Before the court hears the main arguments in the matter, Chief Justice Chidyausiku wants to hear from the parties if the law survived and is still valid in the new Constitution. The court said if the law was indeed struck out in the Madanhire case, there was need to find out if the new Constitution had the power to breathe some life into the dead law.
Ms Munyoro said, “The Madanhire case did not deal with the new Constitution hence the law was still alive and that a determination has to be made on its validity in terms of the new Constitution.”
Meanwhile, Advocate Lewis Uriri, in a separate matter in which Zimbabwe Football Association chief executive Jonathan Mashingaidze is seeking permanent stay of prosecution on criminal defamation charges, told the court that he had filed heads of argument addressing the same issues that the court wants from the parties in the MISA case.
In the heads of argument prepared by Advocates Uriri and Webster Chinamhora, it is argued that Section 96 had been a nullity since its promulgation and that the new Constitution cannot breathe life into it.
The lawyers argued that the law was dead and that it cannot be viewed to have been resurrected by the new Constitution.
“It has now been established that Section 96 (1) of the Criminal Code having been declared a nullity, was never law and by operation of logic has no efficacy even after the subsequent repeal of the previous Constitution.
“Put differently, from nothing comes nothing. Section 96(1) has always been a constitutional nullity and therefore cannot purport to have survived the previous constitution. It does not suddenly gain new efficacy because the new Constitution has been promulgated,” reads the heads.