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of the criminal defamation law in Zimbabwe
from the MISA-Zimbabwe Monthly Alerts Digest - January 2004
By Nyasha Nyakunu
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.
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.
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
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.
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
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
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.
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.
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.
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
stipulates that: "Congress shall make no law … abridging
the freedom of speech, or of the press."
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.
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
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
The law seeks
to undermine freedoms protected by the Constitution of Zimbabwe
and international conventions, charters and declarations ratified
freedom of expression is protected Under Article 19 of the Universal
Declaration of Human Rights, which stipulates:
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
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.
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.
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.
intention of criminalizing the publication of falsehoods is ipso
facto designed to clampdown on open criticism of the government
and public authorities.
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:
possesses unattractively wide scope for the oppression of opponents
of government, not to mention freedom of expression and the press.
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
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
is a media consultant
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