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Press Freedom Cases - The Independent and Standard Appeals to the
Supreme Court - Court Watch 4/2011
December 15, 2011
There are several
important current court cases involving press freedom. The Constitution
enshrines press freedom in the Declaration of Rights in section
20. The State has taken several cases against reporters, editors
and owners of the independent press. Zimbabwe Independent staff
were charged two and a half years ago and their appeal on constitutional
grounds has still not been decided. More recently there has been
another case involving Standard journalists and their application
for an appeal to the Supreme Court has just been turned down –
this rejection will probably be appealed. There is also likely to
be an application for another Standard case to be referred to the
Supreme Court. These cases call into question the constitutionality
of provisions of the Criminal Law Code which affect freedom of expression.
There has long been a call, as part of the law reform agenda paving
the way for free and fair elections, to amend sections of the Criminal
Law Code affecting both freedom of expression and of association.
In the meantime, until such reforms take place, it is important
that the Supreme Court decide these constitutional cases promptly
– as the country’s highest court, whose decisions are
binding on all other courts, it is its responsibility to provide
legal guidance, not only for the press, but also for magistrates,
prosecutors and police, the legal profession and members of the
Against the Zimbabwe Independent Journalists
v Chimakure and Kahiya
This case has
dragged on and on. It started in May 2009. It came before the Supreme
Court in June 2010 and nearly eighteen months later the Supreme
Court’s decision has not been delivered.
An article was published in the Zimbabwe Independent of 8th-14th
May 2009 titled "CIO, police role in activists' abduction revealed"
It was written by Constantine Chimakure; Vincent Kahiya was the
Independent editor at the time.
covered an impending criminal trial in the High Court which was
set down to begin on 29th June 2009, involving a group of MDC-T
activists who had been reported
missing in late 2008 but had been brought court on criminal
charges just before Christmas. The article purported to rely for
its facts on public documents – indictments and State case
summaries already served on the accused activists, revealing that
the activists were either in the custody of the CIO or police during
the period they were reported missing and referring, with names,
to the roles played by police and intelligence agents in their abduction,
unlawful detention and mistreatment.
11th May 2009:
Journalists’ arrested: The police had looked for Mr Kahiya
and Mr Chimakure unsuccessfully at the newspaper’s offices
on 9th May, so they presented themselves at the Law and Order Section
of Harare Central police station on the morning of 11th May 2009,
in the company of their lawyer Innocent Chagonda. They were interrogated
for several hours, signed warned and cautioned statements and were
then arrested and detained in police cells overnight. The finance
director of the Independent’s publishing company, Mr Mike
Curling, was called to the police station to represent the company
as the third accused, but was not detained, merely warned to attend
court the next day.
police complaint was that the names of and roles played by police
and intelligence agents in the abduction, unlawful detention and
mistreatment of the persons accused in the High Court indictment
had been falsely reported in the story. Although the accused denied
that any of the information published was false, charges were brought
against Kahiya and Chimakure in their personal capacities and against
Curling as representative of the company. The charge was contravening
section 31(1)(b) of the Criminal
Law Code, which makes it an offence to publish a false statement
intending to undermine confidence in a law enforcement agency.
May: Magistrates Court bail hearing
night in police cells the two journalists were taken to court, where
they were joined by Mr Curling. Harare Magistrate Catherine Chimanda
granted all three bail of $200 and placed them on remand to face
trial. The bail conditions were that they must report to the police
Law and Order Section once a week and to come to court periodically
for further remand [remand usually lasts 14 days at a time unless
a longer period is accepted by an accused person].
30th July 2009:
Application for referral to Supreme Court granted: At a remand hearing
on 30th July 2009 the magistrate granted a defence application to
refer the constitutionality of section 31(1)(b) of the Criminal
Law Code to the Supreme Court for a definitive ruling. Under section
24(2) of the Constitution, if a possible infringement of the Declaration
of Rights is raised during court proceedings, the presiding magistrate
or judge must refer the case to the Supreme Court if requested to
do so by a party, unless the request is considered frivolous or
vexatious. At the same time Curling was discharged. Kahiya and Chimakure,
however, remained on remand. Their criminal trial was indefinitely
postponed pending the Supreme Court’s decision.
3rd June 2010:
Case at last in Supreme Court: The case took nearly a year to come
up for hearing in the Supreme Court.
in the Supreme Court: June 2010
There were five
judges on the bench: Chief Justice Godfrey Chidyausiku, Deputy Chief
Justice Luke Malaba and Justices Vernanda Ziyambi, Misheck Cheda
and Paddington Garwe. For Chimakure and Kahiya, their lawyer Innocent
Chagonda delivered a powerful argument attacking the constitutional
validity of section 31 of the Criminal Law Code. Although the State
opposed the appeal, observers in court assessed the State presentation
as an ineffective counter to Mr Chagonda’s argument. At the
conclusion of the hearing the court reserved judgment. Nearly eighteen
months later the Supreme Court’s decision is still awaited.
argument for the nullification of section 31 as unconstitutional
can be summarised as follows:
31 infringes the constitutional right to freedom of expression
enshrined in the Declaration of Rights, section 20 of the Constitution
[The State prosecution did not contest this point];
the right to freedom of expression is admittedly not absolute,
the only infringements permitted by the Constitution are those
which are authorised by a law, are imposed for certain limited
purposes specified in the Constitution and are reasonably justifiable
in a democratic society;
31 does not qualify as a “law” because it lacks essential
qualities of a law, i.e., the degree of certainty and clarity
which enables persons affected by it to know what conduct is prohibited
and what is not;
31 does not fall within the permissible purposes claimed by the
State which were the interests of defence, public order or public
31 is not reasonably justifiable in a democratic society.
was backed up by citation of cases decided in many jurisdictions,
several of them decided by the Supreme Court itself. In one Zimbabwean
case cited, the judgment had been written by Chief Justice Chidyausiku.
of the Case: The Supreme Court reserved judgment. Nearly eighteen
months later its decision has not been delivered. On 18th March
the magistrates court, with State acquiescence, removed both Kahiya
and Chimakure from remand, relieving them of the burden of repeated
court appearances. Depending on the Supreme Court decision, the
State is free to renew the charges by issue of summons.
Against Standard Journalists
v Madanhire, Nyangove and Ramakgapola
Nevanji Madanhire, reporter Patience Nyangove and Alpha Media Holdings
HR manager Loud Ramakgapola have since 30th June 2011 been facing
for criminal defamation over a Standard story published the previous
weekend, stating that there were fears for the safety of MDC-T Minister
of State Jameson Timba after his arrest by a “notorious”
named senior police officer. Police claimed the named police officer
had not been present or involved in the arrest of Mr Timba. All
three Standard staff were interrogated, but only Mr Madanhire was
detained for the night in police cells – the others were allowed
to go, on condition they reported back to police the next day. Taken
to court, they were granted bail and placed on remand on charges
of criminal defamation under section 96 of the Criminal Law Code.
Section 96 makes it an offence for anyone who, intending to harm
another person’s reputation, publishes a false statement which
causes serious harm to that other person’s reputation or creates
a real risk of such harm; the penalty is a fine of up to $5000 or
2 years imprisonment or both. After further remand hearings the
defence lawyers on Monday 12th December applied for the constitutionality
of section 96 of the Criminal Law Code to be referred to the Supreme
Court for a ruling. As was done in the Chimakure and Kahiya case,
their lawyer invoked section 24(2) of the Constitution which says
that if a possible infringement of the Declaration of Rights is
raised during court proceedings the presiding magistrate or judge
must refer the case to the Supreme Court if requested to do so,
unless the request is considered frivolous or vexatious.
for referral to Supreme Court dismissed: In a surprise decision
handed down on 14th December the magistrate dismissed the application
and remanded both accused for trial on 24th January. The only ground
on which such an application can be dismissed is if it is considered
to be frivolous or vexatious. The options now open to Mr Madanhire
and Ms Nyangove are either:
- to undergo
trial in the magistrates court, and, if convicted, to appeal against
conviction and raise their constitutional arguments as part of
their appeal, or
- to take
immediate steps to apply to the High Court for review and correction
of the magistrate’s decision, or
- to make
a direct application to the Supreme Court challenging the magistrate’s
decision as being itself a denial of their constitutional right
to protection of the law.
Application for Referral to the Supreme Court?
2 against Standard Journalists
Nevanji Madanhire, reporter Nqaba Matshazi and company representative
Loud Ramakgapola were arrested
and detained by police on 15th November 2011. They were charged
with criminal defamation under the Criminal Law Code, section 96,
and theft of documents from the complainant, an influential businessman.
The criminal defamation allegation is based on a story in the Standard
about financial problems alleged to be facing a medical aid society
run by the complainant. The accused spent a night in police cells
before being taken to court on 16th November, when a magistrate
freed them on $100 bail and placed them on remand for trial in due
course. It was a bail condition that they surrender their passports.
Notwithstanding the rejection of their application on 14th December
to have the constitutionality of section 96 in their other case
referred to the Supreme Court, the defence intend to make an application
to the magistrate’s court for the constitutionality of section
96 to be referred to the Supreme Court in this case.
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