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Statement on the Supreme Court ruling in the Daily News case
Crisis in Zimbabwe Coalition
September 22, 2003

The Daily News refused to register under the Access to Information and Protection of Privacy Act. It declined to register strongly believing that to register would be to submit itself to a system of repressive state controls that would violate its fundamental right to freedom of expression and would drastically curtail its ability to inform the public. It therefore sought to bring a constitutional challenge in the Supreme Court. The basis of this challenge was that the system of state control over newspapers is unconstitutional as it violates its right to freedom of expression enshrined in the constitution.

The Supreme Court refused to entertain this challenge. It held that a law remains valid until a court of law rules that it is invalid and therefore a person wishing to challenge the validity of a law must first comply and afterwards argue in court about its validity. The newspaper could not approach the court for a constitutional ruling whilst it was in breach of the law it was challenging. The court could not condone its open defiance of that law. Before it would be heard it must first stop violating that law either by registering under the Act or ceasing to publish the newspaper until the constitutional challenge had been decided.

We believe that this decision amounts to an abrogation by the Supreme Court of its duty to protect and uphold the fundamental rights of the people of Zimbabwe.

Section 3 of the Constitution provides that the Constitution is the supreme law of Zimbabwe and any law that is inconsistent with the Constitution is invalid and void. The Constitution has a series of provisions declaring the fundamental rights of the people. These are vitally important rights and an Act of Parliament will be invalid if it contains provisions that breach these fundamental rights. The primary responsibility for deciding whether provisions are void on this basis rests with the Supreme Court. This court will decide this when constitutional challenges are brought before them.

In cases where the constitutionality of laws is challenged, it is important that the Supreme Court gives it’s ruling as soon as possible so that the position can be clarified. If the law is indeed void, or portions of it are void, people should not be obliged to abide by such a law. If it is found to be constitutional, then everyone will be expected to abide by that law.

The Daily News did not simply defy the law and refuse to obey it. It sought a ruling from the Supreme Court about the constitutionality of that law and would obviously have been bound by the ruling.

It is unfair and unjust to require compliance with a law as a precondition for a constitutional ruling on that law. If a person believes that a law obliges him or her to take action or imposes conditions that will seriously violate his or her fundamental rights, that person should be entitled to a ruling by the court about this without first complying with the law. A person may suffer grave prejudice by having to comply with a law that the constitutional court later rules to be in flagrant violation of constitutional rights. Some examples will illustrate this. Take a law passed obliging a senior public official to resign immediately without a hearing to determine whether there are any good grounds for his forced removal and taking away all his pension entitlements. The official would have to resign first before he would be entitled to challenge the constitutional validity of the law. Take also a law that orders a newspaper to close immediately and to hand over its equipment to the state without the law giving any reasons why the paper should be closed down. Again the newspaper would have to close and hand over its equipment before it could mount a constitutional challenge. Similarly in the Daily News the newspaper would have had to subject itself to a system of state control that it thought violated its rights, before it could challenge that law. Alternatively, it would have had to stop publishing the newspaper thereby sustaining financial prejudice.

It is established law that a person who is prosecuted for failing to comply with a criminal provision can challenge the constitutionality of that law and the Supreme Court will be obliged to make a ruling on its constitutionality. The fact that he has breached the law will not mean that he forfeits his right to a constitutional ruling. Surely a person who does not wait to be prosecuted and instead approaches the Supreme Court for a ruling on its constitutionality should not be in a worse position than the person who is being prosecuted for breach of the law.

We therefore believe that the ruling in the Daily News case was wrong.

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