In a landmark ruling, the Zimbabwean Constitutional Court on July 22 declared unconstitutional a section of the draconian Criminal Law (Codification and Reform) Act that criminalizes defamation.
The ruling was in response to a case in which two journalists were charged with criminal defamation after their paper, the Zimbabwe Independent, published a story naming state security agents alleged to have abducted opposition and human rights activists in 2008.
The journalists, Constantine Chimakure, a former editor of the Zimbabwe Independent, and Vincent Kahiya, the group editor-in-chief of Alpha Media Holdings which owns the title, challenged the constitutionality of the law, arguing that it was not reasonably justifiable in a democratic society.
The striking down of criminal defamation is an encouraging sign of possibility for the transformation of Zimbabwean jurisprudence--from the black-and-white television era to a modern, vivid recognition of freedom of expression as a foundational value in a democracy. The new constitution, born out of the Global Political Agreement brokered in the wake of Zimbabwe's bloody disputed 2008 elections, was some four years in the making. In a referendum in March 2013, Zimbabweans voted overwhelmingly in favor of the new charter, and President Robert Mugabe signed it into law two months later.
But while this judgment is to be welcomed, other statutes continue to restrict the media. In particular, the Access to Information and Protection of Privacy Act (AIPPA) and the Public Order and Security Act (POSA), both enacted by a ZANU-PF-dominated parliament in 2002, still create a hostile media environment in Zimbabwe. The Zimbabwean government has used both statutes to silence dissent, expelling foreign correspondents and forcing the closure of four newspapers including the Daily News in 2003.
These laws gave wide powers to the Zimbabwe Republic Police, but surely cannot be justified under the new terms of the new constitution. The Zimbabwean government should strike down those laws in earnest before a court challenge.
The Constitutional Court's new trajectory is a cause for celebration. The court is a vehicle for the promotion of the values, rights, and principles provided for in Zimbabwe's new constitution. It also monitors developments, including policy and draft legislation, that might affect the Constitution and the values and principles it enshrines. It serves to inform people and organizations of their constitutional rights and to assist them in claiming those rights.
Freedom of expression empowers community members to expose maladministration and corruption, and to demand better service delivery from those elected to serve the people. When the right to freedom of expression is not protected, it becomes difficult to be an active and responsible citizen; one cannot hold public servants accountable for fear of being muzzled, intimidated, censored, or harassed.
International bodies have also condemned criminal defamation laws as inimical to democracy and freedom of expression. There is unanimity among legal practitioners that reputation is adequately protected under civil law.
In 2002, the United Nations special rapporteur on freedom of opinion and expression, the Organization for Security and Co-operation in Europe representative on freedom of the media, and the Organization of American States special rapporteur jointly declared that "...all criminal defamation laws should be abolished and replaced where necessary with appropriate civil defamation laws."
In 2005, the special rapporteur for freedom of expression for the African Commission on Human and People's Rights, Andrew Chigovera, and his counterpart at the Inter-American Court of Human Rights, Eduardo Bertorn, issued a joint statement that criminal defamation laws are incompatible with freedom of expression.
Against this background and in line with the Zimbabwean constitution which, its drafters like to say, was benchmarked against international law, criminal defamation law and other laws that stifle freedom of the media have no place in Zimbabwe.
Still, the Constitutional Court's judgment has to be implemented. Government must instruct its security apparatus to refrain from intimidating human rights and media activists. Media freedom is not a right for the exclusive enjoyment of journalists, it is a right enjoyed by, and for the benefit of, ordinary citizens.
The media have an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture.