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Analysis of the criminal defamation law in Zimbabwe
Extracted from the MISA-Zimbabwe Monthly Alerts Digest - January 2004
By Nyasha Nyakunu
February 11, 2004

The arrests of three journalists working for The Zimbabwe Independent on 10 January 2004 comes against the backdrop of similar arbitrary actions by the state and presents a very strong argument for the scrapping of the criminal defamation laws in Zimbabwe.

The existence of the criminal law of defamation also further strengthens agitations for the enactment of a Freedom of Information Act in Zimbabwe to enable journalists to easily access information from government bodies and institutions.

Without that, the media will not be able to transmit information to the people concerning the actions of their leaders, business practices and policies affecting the social, economic and political life of the state.

Iden Wetherell, Vincent Kahiya and Dumisani Muleya, the weekly publication’s editor, news editor, and chief reporter, respectively, were detained over a story that President Robert Mugabe had commandeered an Air Zimbabwe aircraft to the Far East. The three were released on $20 000 (US$25) bail each and remanded out of custody when they appeared in court on charges of criminal defamation. The three had spent two nights in police cells.

Freedom of Information Act

Similar stories have been written in the past concerning Mugabe’s disruption of Air Zimbabwe’s commercial flights thereby crippling the operations of the cash-strapped public company of millions of dollars in lost revenue.

This situation adds weight to mounting pressure for the enactment of a Freedom of Information Act to compel public institutions to release information sought by journalists.

In the absence of such an enabling act, the question of whether the President pays the airline whenever he charters the AirZim aircrafts will remain subject to speculation as that information will never be released voluntarily.

Of concern to journalists and civic rights organisations such as MISA-Zimbabwe is the fact that the President’s Office and Air Zimbabwe itself concede that Mugabe chartered the Boeing 767-200 during his holiday retreat to Malaysia, Singapore and Indonesia.

The offence, according to the State, arises from claims by the Zimbabwe Independent that Mugabe had "personally" phoned from Malaysia to have the plane which is one of the only two servicing the London-Harare route, released for his use while in that country.

Verification of facts

While the paper cannot escape criticism for pinning its story on unnamed Air Zimbabwe sources without bothering to approach the airline and the President’s Office for verification of certain facts, it still remains a fact that Mugabe chartered the plane in question during his retreat to the Far East. It must also be noted that the Presidents Office has for some time shown hostility to enquiries from certain newspapers and journalists in the private media. It might as well be true that such an enquiry could not have been tolerated had the paper endeavoured to do so.

To arrest the journalists over the use of the words "commandeered" and "personally" which can be debated as semantics, smacks of machinations to instil fear among journalists working for the private press coming as it does after the closure of The Daily News and The Daily News on Sunday in September last year.

Instead, news organisations should be given breathing space to make some errors in good faith, without facing liability. The right of the press to freely publish, editorialise, critique and inform is a fundamental principle in a democracy.

It is against that background that other nations like the United States have pro-media laws like the First Amendment and Freedom of Information Act to combat censorship and media control. Such laws exist in South Africa that has an Access to Information Act.

The First Amendment

The First Amendment stipulates that: "Congress shall make no law … abridging the freedom of speech, or of the press."

The primary purpose of the First Amendment was to create a fourth institution as a watchdog on the three arms of government – the executive, judiciary and legislature. For as long as the criminal defamation law remains in Zimbabwe’s statutes, it will be difficult for citizens to hold their government accountable.

Media practitioners, human rights lawyers and civic organisations should take up the challenge and push for the constitutional scrapping of offences under the Act on the basis that it is nebulous and open to unfair application.

The Southern African Development Commission, the African Union and the international community, should not let President Mugabe’s government off the hook but should press for the repealing of the criminal defamation laws.

The law seeks to undermine freedoms protected by the Constitution of Zimbabwe and international conventions, charters and declarations ratified by Zimbabwe.

For instance, freedom of expression is protected Under Article 19 of the Universal Declaration of Human Rights, which stipulates:

Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

By its very nature, criminal defamation, which comprises the unlawful and intentional publication of information that injures another person’s reputation, stifles the operations of a free media.

Repressive Governments

It is only repressive governments determined to operate in secrecy, which still hang on to criminal defamation laws to protect officials from media scrutiny.

This is amply demonstrated by the amendment of Section 80 of the widely condemned Access to Information and Protection of Privacy Act (AIPPA). The amended section makes it an offence for a journalist to abuse journalistic privilege by intentionally and recklessly publishing falsehoods. Journalists convicted of the offence risk being fined or jailed for a period not exceeding two years. This is despite the fact that reputation, individual rights and freedoms, can still be protected under the civil defamation laws.

The government is however, reluctant to follow that route because it will deprive the ruling Zanu PF of repressive instruments it desperately needs to muzzle and cow the independent press in the face of waning popularity. This is so because under the civil defamation laws the president or a statutory corporation cannot sue for defamation.

Therefore, the intention of criminalizing the publication of falsehoods is ipso facto designed to clampdown on open criticism of the government and public authorities.

Arbitrary arrests of journalists Leading writers on South African Criminal Law (Burchell and Milton Principles of Criminal Law p450) note that the use of criminal sanction of what is ordinarily a delict appears designed to protect government from scurrilous attacks that might stir up public opinion and insurrection as well as maintain decency in public discourse and public peace.

They further observe:

The crime possesses unattractively wide scope for the oppression of opponents of government, not to mention freedom of expression and the press.

Its role in the prevention of disturbances of the public peace in modern society is minimal.

This poses a strong case for the decriminalisation of the criminal defamation laws to curb the arbitrary arrests of journalists ahead of the parliamentary elections in 2005, which the ruling Zanu PF is determined to win at all costs despite growing disillusionment with its style of governing without accountability.

Otherwise the harassment and arbitrary arrests of journalists notwithstanding the political violence witnessed in the run-up to the 2000 parliamentary elections will be replicated at even larger scale ahead of the 2005 polls.

Nyasha Nyakunu is a media consultant

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