COURT WATCH 4/2011
There are several important current court cases involving press freedom. The Constitution enshrines press freedom in the Declaration of Rights in section 20. The State has taken several cases against reporters, editors and owners of the independent press. Zimbabwe Independent staff were charged two and a half years ago and their appeal on constitutional grounds has still not been decided. More recently there has been another case involving Standard journalists and their application for an appeal to the Supreme Court has just been turned down – this rejection will probably be appealed. There is also likely to be an application for another Standard case to be referred to the Supreme Court. These cases call into question the constitutionality of provisions of the Criminal Law Code which affect freedom of expression. There has long been a call, as part of the law reform agenda paving the way for free and fair elections, to amend sections of the Criminal Law Code affecting both freedom of expression and of association. In the meantime, until such reforms take place, it is important that the Supreme Court decide these constitutional cases promptly – as the country’s highest court, whose decisions are binding on all other courts, it is its responsibility to provide legal guidance, not only for the press, but also for magistrates, prosecutors and police, the legal profession and members of the general public.
Case Against the Zimbabwe Independent Journalists
State v Chimakure and Kahiya
This case has dragged on and on. It started in May 2009. It came before the Supreme Court in June 2010 and nearly eighteen months later the Supreme Court’s decision has not been delivered.
Background: An article was published in the Zimbabwe Independent of 8th-14th May 2009 titled "CIO, police role in activists' abduction revealed" It was written by Constantine Chimakure; Vincent Kahiya was the Independent editor at the time.
The article covered an impending criminal trial in the High Court which was set down to begin on 29th June 2009, involving a group of MDC-T activists who had been reported missing in late 2008 but had been brought court on criminal charges just before Christmas. The article purported to rely for its facts on public documents – indictments and State case summaries already served on the accused activists, revealing that the activists were either in the custody of the CIO or police during the period they were reported missing and referring, with names, to the roles played by police and intelligence agents in their abduction, unlawful detention and mistreatment.
11th May 2009: Journalists’ arrested: The police had looked for Mr Kahiya and Mr Chimakure unsuccessfully at the newspaper’s offices on 9th May, so they presented themselves at the Law and Order Section of Harare Central police station on the morning of 11th May 2009, in the company of their lawyer Innocent Chagonda. They were interrogated for several hours, signed warned and cautioned statements and were then arrested and detained in police cells overnight. The finance director of the Independent’s publishing company, Mr Mike Curling, was called to the police station to represent the company as the third accused, but was not detained, merely warned to attend court the next day.
Charge: The police complaint was that the names of and roles played by police and intelligence agents in the abduction, unlawful detention and mistreatment of the persons accused in the High Court indictment had been falsely reported in the story. Although the accused denied that any of the information published was false, charges were brought against Kahiya and Chimakure in their personal capacities and against Curling as representative of the company. The charge was contravening section 31(1)(b) of the Criminal Law Code, which makes it an offence to publish a false statement intending to undermine confidence in a law enforcement agency.
12th May: Magistrates Court bail hearing
After their night in police cells the two journalists were taken to court, where they were joined by Mr Curling. Harare Magistrate Catherine Chimanda granted all three bail of $200 and placed them on remand to face trial. The bail conditions were that they must report to the police Law and Order Section once a week and to come to court periodically for further remand [remand usually lasts 14 days at a time unless a longer period is accepted by an accused person].
30th July 2009: Application for referral to Supreme Court granted: At a remand hearing on 30th July 2009 the magistrate granted a defence application to refer the constitutionality of section 31(1)(b) of the Criminal Law Code to the Supreme Court for a definitive ruling. Under section 24(2) of the Constitution, if a possible infringement of the Declaration of Rights is raised during court proceedings, the presiding magistrate or judge must refer the case to the Supreme Court if requested to do so by a party, unless the request is considered frivolous or vexatious. At the same time Curling was discharged. Kahiya and Chimakure, however, remained on remand. Their criminal trial was indefinitely postponed pending the Supreme Court’s decision.
3rd June 2010: Case at last in Supreme Court: The case took nearly a year to come up for hearing in the Supreme Court.
Hearing in the Supreme Court: June 2010
There were five judges on the bench: Chief Justice Godfrey Chidyausiku, Deputy Chief Justice Luke Malaba and Justices Vernanda Ziyambi, Misheck Cheda and Paddington Garwe. For Chimakure and Kahiya, their lawyer Innocent Chagonda delivered a powerful argument attacking the constitutional validity of section 31 of the Criminal Law Code. Although the State opposed the appeal, observers in court assessed the State presentation as an ineffective counter to Mr Chagonda’s argument. At the conclusion of the hearing the court reserved judgment. Nearly eighteen months later the Supreme Court’s decision is still awaited.
The defence argument for the nullification of section 31 as unconstitutional can be summarised as follows:
- section 31 infringes the constitutional right to freedom of expression enshrined in the Declaration of Rights, section 20 of the Constitution [The State prosecution did not contest this point];
- although the right to freedom of expression is admittedly not absolute, the only infringements permitted by the Constitution are those which are authorised by a law, are imposed for certain limited purposes specified in the Constitution and are reasonably justifiable in a democratic society;
- section 31 does not qualify as a “law” because it lacks essential qualities of a law, i.e., the degree of certainty and clarity which enables persons affected by it to know what conduct is prohibited and what is not;
- section 31 does not fall within the permissible purposes claimed by the State which were the interests of defence, public order or public safety;
- section 31 is not reasonably justifiable in a democratic society.
The argument was backed up by citation of cases decided in many jurisdictions, several of them decided by the Supreme Court itself. In one Zimbabwean case cited, the judgment had been written by Chief Justice Chidyausiku.
Present Status of the Case: The Supreme Court reserved judgment. Nearly eighteen months later its decision has not been delivered. On 18th March the magistrates court, with State acquiescence, removed both Kahiya and Chimakure from remand, relieving them of the burden of repeated court appearances. Depending on the Supreme Court decision, the State is free to renew the charges by issue of summons.
Case Against Standard Journalists
State v Madanhire, Nyangove and Ramakgapola
Standard Editor Nevanji Madanhire, reporter Patience Nyangove and Alpha Media Holdings HR manager Loud Ramakgapola have since 30th June 2011 been facing trial for criminal defamation over a Standard story published the previous weekend, stating that there were fears for the safety of MDC-T Minister of State Jameson Timba after his arrest by a “notorious” named senior police officer. Police claimed the named police officer had not been present or involved in the arrest of Mr Timba. All three Standard staff were interrogated, but only Mr Madanhire was detained for the night in police cells – the others were allowed to go, on condition they reported back to police the next day. Taken to court, they were granted bail and placed on remand on charges of criminal defamation under section 96 of the Criminal Law Code. Section 96 makes it an offence for anyone who, intending to harm another person’s reputation, publishes a false statement which causes serious harm to that other person’s reputation or creates a real risk of such harm; the penalty is a fine of up to $5000 or 2 years imprisonment or both. After further remand hearings the defence lawyers on Monday 12th December applied for the constitutionality of section 96 of the Criminal Law Code to be referred to the Supreme Court for a ruling. As was done in the Chimakure and Kahiya case, their lawyer invoked section 24(2) of the Constitution which says that if a possible infringement of the Declaration of Rights is raised during court proceedings the presiding magistrate or judge must refer the case to the Supreme Court if requested to do so, unless the request is considered frivolous or vexatious.
Application for referral to Supreme Court dismissed: In a surprise decision handed down on 14th December the magistrate dismissed the application and remanded both accused for trial on 24th January. The only ground on which such an application can be dismissed is if it is considered to be frivolous or vexatious. The options now open to Mr Madanhire and Ms Nyangove are either:
- to undergo trial in the magistrates court, and, if convicted, to appeal against conviction and raise their constitutional arguments as part of their appeal, or
- to take immediate steps to apply to the High Court for review and correction of the magistrate’s decision, or
- to make a direct application to the Supreme Court challenging the magistrate’s decision as being itself a denial of their constitutional right to protection of the law.
Another Application for Referral to the Supreme Court?
Case 2 against Standard Journalists
Standard Editor, Nevanji Madanhire, reporter Nqaba Matshazi and company representative Loud Ramakgapola were arrested and detained by police on 15th November 2011. They were charged with criminal defamation under the Criminal Law Code, section 96, and theft of documents from the complainant, an influential businessman. The criminal defamation allegation is based on a story in the Standard about financial problems alleged to be facing a medical aid society run by the complainant. The accused spent a night in police cells before being taken to court on 16th November, when a magistrate freed them on $100 bail and placed them on remand for trial in due course. It was a bail condition that they surrender their passports. Notwithstanding the rejection of their application on 14th December to have the constitutionality of section 96 in their other case referred to the Supreme Court, the defence intend to make an application to the magistrate’s court for the constitutionality of section 96 to be referred to the Supreme Court in this case.
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