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The judgment of the Supreme Court on the Daily News application and the subsequent police action against the paper
Legal Resources Foundation (LRF)
September 18, 2003

Harare - The Trustees of the Legal Resources Foundation (LRF) are deeply dismayed by the decision of the Supreme Court on the application by the Associated Newspapers Group challenging the constitutionality of Section 66 of the Access to Information & Protection of Privacy Act Chapter 10:27. In particular, the Trustees wish to register their concern at the judgment.

The Supreme Court has the vitally important responsibility of ensuring the protection of the fundamental rights of all the people of Zimbabwe that are enshrined in the Declaration of Rights. When there are doubts about the constitutionality of a new law, persons who believe that their constitutional rights will be violated by that law should be entitled to obtain a ruling from the Supreme Court as to whether or not that legislation is constitutional.

It is well-established law that a person being prosecuted under a law that he or she has openly defied is entitled to raise the defence that the law is invalid because it violates that person's fundamental constitutional rights. The person can ask the court dealing with the matter to refer the issue of constitutionality to the Supreme Court for determination. The Supreme Court will be obliged to make a ruling because if the law is invalid the prosecution cannot continue.

A person who believes that a new law is unconstitutional and that compliance with it will lead to violation of his or her rights should not be in a worse position than the person being prosecuted under that law. Rather than wait for a prosecution that person should be able to approach the Supreme Court in order to obtain a ruling on the constitutionality of the law. This was the situation in the current case. The ANZ did not simply ignore the requirement to register under the law; it instituted a constitutional challenge to the registration provision and various other provisions of the Act. It was entitled to expect that the Supreme Court would decide whether or not the provisions are constitutional.

The LRF also notes with concern that one of the key cases the court relied upon in arriving at its conclusion was apparently not referred to by either counsel in their arguments in court and applicant's counsel was not subsequently given an opportunity to address arguments to the court about this case. In fact, on close analysis this case does not support the proposition for which it was used as the authority by the court in constitutional cases.

The Trustees are also alarmed by the very heavy-handed manner in which the Police have descended upon the ANZ premises and forcibly removed a wide range of property including computers and office furniture. It is the view of the Trustees that the Police action is unjustifiable and cannot be held to be reasonably necessary to prove the operations of the ANZ or the publication of the Daily News one day after the Supreme Court ruling as copies of the newspaper could have been taken as proof of publication without registration under the Act.

The LRF also points out that in many jurisdictions around the world the practice of licensing newspapers has been discarded and is now generally recognized as being in contravention of the freedom of expression through the exercise of prior restraint. In some of the countries where it is still practiced the requirements for registration are purely formal, and a fine rather than closure is the accepted penalty for non-compliance.

The Trustees further note that the ANZ has been on the receiving end of a whole succession of illegal activities in the past. Its offices and printing press have been bombed. Military explosives were used in some of the attacks. None of the culprits of these attacks have been apprehended. On numerous occasions over the last few years, lawless elements have wantonly burnt copies of the newspaper, and in many instances the culprits were never arrested or prosecuted. When the Police have been present when these incidents occurred, they often failed to intervene to protect the vendors and their newspapers and to arrest those responsible. This has fuelled suspicion of complicity in these crimes and selective law-enforcement.

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