[17th October 2014]

Another Major Freedom of Expression Case
Constitutionality of Section 96 of the Criminal Law Code
[Criminal Defamation]

On 25th September 2014, the Constitutional Court handed down its second decision in the long-drawn out criminal defamation case, State v Madanhire and Matshazi.  When the case started in 2011 the issue was whether or not section 96 of the Criminal Law Code, which creates the offence of criminal defamation, was inconsistent with the constitutional protection of freedom of expression.

The Constitutional Court’s brief order [available from the addresses given at the end of this bulletin] confirmed its preliminary judgment of 11th June 2014 [see details below] that section 96 of the Criminal Code was inconsistent with the former constitution.  The order was an interim order and did not elaborate further but said that an appropriate declaratory order will be issued in due course – this has still not been done.

As the case is nearly three years old, this bulletin sketches the background to it, the issues that were dealt with by the Constitutional Court in its judgment of 11th June and the practical implications of its latest order.

The State v Madanhire and Matshazi

Constitutionality of section 96 of the Criminal Law Code: Criminal Defamation

Background  In November 2011 the then editor of The Standard newspaper, Nevanji Madanhire and one of its reporters, Nqaba Matshazi, were arrested and taken to court charged with the offence of criminal defamation under section 96 of the Criminal Law Code.  The complainant was a businessman who alleged he had been defamed in an article in the newspaper about the financial state of one of his companies.  The lawyer for the accused questioned the constitutionality of section 96 of the Criminal Law Code and the magistrate referred the case to the Supreme Court [under the former Constitution, the Supreme Court dealt with constitutional referrals] for it to determine that question.  The Supreme Court was requested to declare the section unconstitutional and void.  By 22nd May 2013, when the Constitutional Court and the new Declaration of Rights came into being under the new Constitution, the Supreme Court had not heard the case.  So, under the transitional provisions in the new Constitution, the case automatically became the responsibility of the Constitutional Court. 

The Constitutional Court heard the case on 9th October 2013.  At the start of the hearing, the court pointed out that, as the application in its original form did not address the relevant provisions of the new Constitution, the case would have to be confined to the consistency of section 96 with the former Constitution.  Counsel for the applicants [as we will hereafter refer to the two accused persons] responded that his clients would now ask only for a perpetual stay of prosecution, instead of an order that section 96 was void.  So, the constitutional issue was still whether or not section 96 of the Criminal Law Code infringed the former Constitution, but if the court decided there was an infringement, the applicants would be satisfied with an order putting a stop to their prosecution in this case. 

After full argument from both sides, the court reserved judgment.  

Preliminary Judgement of 11th June 2014

The judgment delivered on 11th June was written by Justice Patel.  The other eight members of the court concurred.  [Judgment available from the addresses given at the end of this bulletin].  The judgment first of all dealt with the applicants’ argument that the wording of section 96 of the Criminal Law Code was too general and vague and should be declared unconstitutional on that basis.  As the Supreme Court had done in the Chimakure and Kahiya case [discussed in Court Watch 15/2014 of 30th August] in which the same argument had been addressed to the court on section 31 of the Criminal Law Code criminalising the publication of statements prejudicial to the State, the court concluded that the wording of the challenged provision was clear enough.  It also concluded that the objective of section 96 was the constitutionally permissible one of protecting the reputations, rights and freedoms of others.  The court went on to say the crucial point for decision, therefore, was on the applicants argument that the restriction on freedom of speech created by section 96 of the Criminal Law Code was not reasonably justifiable in a democratic society because it was a disproportionate means of achieving that objective.

The court considered various arguments pro and con the justifiability of section 96.  It took into account international and regional perspectives, including Resolution 169 of November 2010 by the African Commission on Human and Peoples Rights, which called on African states to repeal criminal defamation laws and insult laws which impede freedom of speech. 

Conclusion:  The court’s conclusion was that section 96 goes too far in pursuit of its legitimate objective and therefore infringes the former Constitution. To quote from the judgment: the harmful and undesirable consequences of criminalising defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect. Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons”. 

Limited scope of the judgment

Applicable only to former constitution  Having reached this conclusion, the judgment then sounded a warning note emphasising that the conclusion is applicable only to the freedom of expression guarantee in the former Constitution, and that it will therefore be a matter for decision in another case whether the differently worded guarantee in the new Constitution would permit the same or a different conclusion about the constitutionality of criminalising defamation.  The court was not, of course, saying that it would necessarily reach a different conclusion about criminal defamation under the new Constitution. 

Not Final  This did not end of the case.  The case was then postponed to give Minister Mnangagwa, Minister of Justice, Legal and Parliamentary Affairs, time to persuade the court to reach a different decision, as had been done in the Chimakure and Kahiya case in October 2013. 

Minister Given Opportunity to Justify Section 96

The case was tried under the parameters of the former Constitution, under section 24(5) of which the court was obliged to allow the Minister responsible for administering a law, if he had not been a party to the case, to be given an opportunity to provide the court with evidence that the a constitutional infringement in the said law was reasonably justifiable in a democratic society.  It was to fulfil this obligation that the Constitutional Court issued its order postponing the case and calling on the Minister, in terms of section 24(5), to show cause to the Constitutional Court “if he so wishes, to show cause why s 96 of the Criminal Law (Codification and Reform) Act] should not be declared to be in contravention of s 20(1) of the former Constitution”.

Note:  The present Constitution does not repeat section 24(5) of the former Constitution, and it is not yet known whether the still-awaited rules of procedure of the Constitutional Court will provide for a different, and less time-consuming, method of allowing the Government to defend laws the court has been asked to declare unconstitutional.  [See Bill Watch 15/2014 for a fuller discussion of section 25(5).]

Minister’s Response to the Court

In an affidavit filed on 21st July the Minister said he had no objection to section 96 being declared to be in contravention of section 20 of the former Constitution.  Pointedly referring, however, to the court’s statement that its opinion of section 96 did not apply vis-à-vis the relevant provision of the present Constitution, he submitted that the court “is not under any obligation to strike down the provisions of section 96 of the Criminal Law Code” and can therefore leave it on the statute book to be tested against the new Constitution later.  Having made that suggestion, he left it to the court to make whatever order it deemed fit. [Minister’s affidavit available from the addresses given at the end of this bulletin].

Comment on the Minister’s Response

- The former Constitution provided that every law inconsistent with it was void to the extent of the inconsistency.  A “law” declared void was treated as if it had never been law at all.  If, as the Minister has now conceded and the court’s latest order has confirmed, section 96 was all along inconsistent with the former Constitution, that must mean there is nothing to be “left on the statute book”.  If that line of reasoning is correct, the Constitutional Court cannot declare that the section is still – or, more accurately, back – on the statute bookIt is more likely that the court will avoid the issue, leaving it to be decided in a future case, should the Prosecutor-General see fit to try prosecuting someone for defamation alleged to have been committed after the coming into effect of the new Constitution’s Declaration of Rights on 22nd May 2013.

- If, in its final order, the court was to follow the Minister’s suggestion of leaving section 96 on the statute book, it would run the risk of exposing itself to criticism for in effect re-enacting section 96, thereby going beyond the boundaries of the judiciary’s constitutional role and in so doing trespassing on Parliament’s constitutional legislative preserve.  The Minister could have a fresh attempt at criminalising defamation by introducing a Bill into Parliament for that purpose.  Such a Bill would have to be prepared after in-depth reflection on the Constitutional Court’s reasons for finding section 96 to be inconsistent with the former Constitution, as so carefully spelled out in the judgment of 11th June.  Moreover, following that course, would leave the primary responsibility for deciding whether defamation should be criminalised where it really should be – in the hands of Parliament.  And Parliament would have to comply with the Constitution’s injunction to facilitate public involvement in its legislative processes and ensure that interested parties are consulted about Bills. 

What is the Present Position Regarding Prosecutions for
Criminal Defamation?

Although the court’s promised declaratory order is still to be issued, it can be said at this stage that the practical effect of the court’s order of 24th September is:

- to stop the prosecution for criminal defamation in the present case

- to make it impossible for the State to continue prosecutions for criminal defamation alleged to have been committed before 22nd May 2013 [the date when the Declaration of Rights in the present Constitution superseded the Declaration of Rights in the former Constitution] 

- to leave people guessing what, if anything, the court is going to say in its declaratory order about the Minister’s request to leave section 96 of the Criminal Law Code on the statute book for future cases. 


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