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ZimInd editors apply for a referral to the Supreme Court
MISA-Zimbabwe
June 16, 2009

Zimbabwe Independent editors, Vincent Kahiya and Constantine Chimakure on 16 June 2009 appeared before magistrate Moses Murendo applying for a referral to the Supreme Court where they seek to challenge the constitutionality of section 31 of the Criminal Law (Codification and Reform) Act, (Criminal Code) under which they are charged. The two appeared along with Michael Curling who is representing the Zimbabwe Independent. The matter has however been postponed to 9 July 2009 to enable the prosecution to file its response.

Section 31 of the Criminal Code states that;

Any person who, whether inside or outside Zimbabwe-

(a) publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of-

(i) inciting or promoting public disorder or public violence or endangering public safety; or

(ii) adversely affecting the defence or economic interests of Zimbabwe; or

(iii) undermining public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe; or

(iv) interfering with, disrupting or interrupting any essential service;

shall, whether or not the publication or communication results in a consequence referred to in subparagraph (i), (ii), (iii) or (iv); shall be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding twenty years or both.

The two journalists, who were represented by Innocent Chagonda, contend that section 31 of the Criminal Codification Act is unconstitutional on basis that the penalty of a 20 year sentence imposed by section 31 is so heavy and disproportionate to the offence that it infringes section 20 of the bill of rights. Section 20 of the constitution of Zimbabwe guarantees the right to freedom of expression. He also quoted University of Zimbabwe's professor Geoff Feltoe's description of the sentence as a "savage punishment".

The two journalists submitted that as journalists, the very nature of their job obliges them to write on a regular basis, a task which they cannot safely or efficiently execute if they live in constant fear of arrest for their writing. This is a hindrance to free expression and it therefore violates the Constitution, the journalists argue.

In addition to this, Chagonda argued that section 31 of the Criminal Code was materially similar to section 52 of the now repealed Law and Order Maintenance Act which was declared unconstitutional by the Supreme Court in the case of State vs Chavhunduka. The section was struck down by the Supreme Court on the basis that it was too wide and did no clearly define what "falsity" entailed. Under LOMA the maximum penalty imposed was a prison term of 7 years which can not be compared to 20 years provided for under the Criminal Code.

Chagonda also noted in the application for referral that they would also seek the guidance of the superior court on the propriety of having the Attorney General's office act as the complainant and prosecutor over the same cause.

However the prosecutor Jonathan Murombedzi then made an application for postponement citing the fact that the State needed some more time to enable it to file a response to the application for referral.

The magistrate postponed the matter to 9 July 2009.

Background

Constantine Chimakure and Vincent Kahiya are being charged for the publishing or communicating falsehoods under section 31 of the Criminal Code. The charges arise from a story published in the Zimbabwe independent edition of 8-14 May 2009 titled, Activist abductors named; with the subtitle CIO, police role in activists' abduction revealed, stating that notices of indictment for trial in the High Court, served on some of the activists revealed that the activists were either in the custody of the CIO or police during the period they were reported missing.

Amongst those named were; CIO Assistant Director External, retired brigadier Asher Walter Tapfumaneyi, Police Superintendents, Reggies Chikwete and Joel Tendere, Detective Inspectors, Elliot Muchada and Joshua Muzangano, CID Homicide Officer Commanding, Crispen Kadenge, Chief Superintendent Peter Magwenzi and Senior Assistant Commissioner, Simon Nyathi.

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