On Wednesday, 3 February 2016, the Constitutional Court in Zimbabwe heard an application brought by the Zimbabwe Chapter of the Media Institute of Southern Africa (MISA Zimbabwe) against the Minister and Justice, Legal and Parliamentary Affairs and the Attorney General. The Minister of Information had initially been cited as a respondent, but had indicated that he would not be opposing the application. MISA Zimbabwe and four individuals (three journalists and one independent publishing consultant) approached the court seeking clarity on the status of the criminal defamation offence under the new Zimbabwe Constitution.
Section 96 of the Criminal Code created the offence of criminal defamation and stated that it is an offence to knowingly publish a false (or at least understanding that there was a real risk that it would be false) statement with the intention of harming another person’s reputation which causes serious harm (or there is a real risk of it causing serious harm) to another person’s reputation.
In 2014, in Madanhire v Attorney General Judgment number CCZ 2/14, the Constitutional Court declared that criminal defamation was inconsistent with the protections given to freedom of expression under the previous Zimbabwe Constitution. However, Patel J included a passage in the judgment that reiterated that the matter had been decided in terms of the previous Constitution, and that as the formulation of the right to expression in the new Constitution was different, it may be that the offence of criminal defamation would be constitutional in terms of the new Constitution.
As a result of this passage, there was a great deal of uncertainty around the issue and whether the offence still existed in Zimbabwe. This uncertainty was confounded by the fact that when the Madahire case had been heard and judgment delivered the new Constitution was already in force.
MISA Zimbabwe and the individuals initially approached the court for a declaration that the offence of criminal defamation was inconsistent with the new Constitution, and made submissions on why criminal defamation would still be unconstitutional despite the newly formulated right to freedom of expression which explicitly excludes “malicious injury to a person’s reputation or dignity”.
At a hearing in July 2015, the Constitutional Court requested further submissions from the parties on two issues: whether MISA Zimbabwe and the media practitioners had standing to bring the case in the absence of firm charges against the media practitioners; and whether the effect of the Madanhire judgment had been to effectively remove the offence from Zimbabwean law.
In the hearing on 3 February 2016, Adv Thembinkosi Magwaliba appeared for MISA Zimbabwe and the media practitioners. He first applied to amend the prayers sought (to change it from seeking the declaration of inconsistency under the new Constitution to one in which it was declared that the offence was void ab inito). The State did not oppose this application, and it was granted by the Court.
Adv Magwaliba then argued that the effect of the Madanhire judgment had been to declare the offence of criminal defamation void ab initio. This meant that the offence’s inconsistency with the Constitution was from the promulgation of the law in 2004, and the Court’s judgment in 2014 was merely a recognition that the offence was unconstitutional. In other words, the invalidity of the criminal defamation offence came from section 3 of the (previous) Constitution which stated that “if any other law is inconsistent with this Constitution that other law shall, to the extent of its inconsistency, be void”, and not the court’s declaration that the law was invalid. He referred to a case in which Lord Denning in the Privy Council (in MacFoy v United Africa Co  3 All ER 1169 (PC)) had said that the voidness of a law exists irrespective of the court’s declaration; “there is no need for an order of court to set it aside … although it is sometimes convenient to have the court declare it to be so”
Adv Magwaliba argued that the current Constitution was very explicit in its provisions dealing with the continuity of laws. In the Sixth Schedule, the current Constitution stipulates that all existing laws at the time the new Constitution came into force would continue to exist in Zimbabwe. His submission was that because the effect of Madanhire was to declare the offence void an initio the offence was not a valid law at the time the new Constitution became effective – because the offence had never been a valid law. He argued that it was immaterial that Madanhire had been determined after the effective date of the Constitution because the offence simply was never a valid offence.
Ms Venrandah Munyoro for the first and third respondents then made her submissions. She argued that the timing of the Madanhire judgment and the date on which the current Constitution came into force was the crucial issue in this case. She stated that because the offence had not yet been declared to be unconstitutional when the new Constitution came into force, it was one of the laws that was brought across into the new Constitutional dispensation (in terms of section 1 of the Sixth Schedule of the current Constitution which states that all valid laws at the time that constitution came into force remained laws in Zimbabwe).
At this point, the Chief Justice Godfrey Chidyausiku asked Ms Munyoro whether her position was that the offence was valid at the time the Constitution came into force. She initially said that it was, but with further probing by the Chief Justice as to the meaning of “void” (as opposed to “voidable”), she conceded that in terms of the former Constitution the offence should be deemed to have never existed in Zimbabwe law.
The Chief Justice repeatedly made the point that there is a distinction between the concept of voidness and voidable. He explained that “voidness” indicates “void ab initio” which means “void from the beginning”, whereas “voidable” refers to something that is valid and remains valid until it is declared invalid and so is something that is capable of being made void.
Adv Lewis Uriri for the amicus aligned himself with the applicants’ position, but added a helpful reference to the South African authors Currie and De Waal’s Bill of Rights Handbook. In this book, Currie and De Waal explain the difference between invalidity – which applies from the promulgation of a law – and remedy which is a court’s declaration of that invalidity. He said that the fact that a law stands before a court declares it inconsistent with the Constitution does not make it valid: that is merely a way to ensure the rule of law as it prevents citizens taking the law into their own hands in respect of constitutionally invalid laws.
After a brief deliberation, the Chief Justice delivered the Court’s decision. He said that in light of the state’s concession that the offence did not exist as a result of the decision in Madanhire, the Court was granting the order in terms of the applicants’ draft order. This confirmed that criminal defamation is no longer an offence in Zimbabwe. The Chief Justice said that reasons for the judgment would follow in due course.
Adv Magwaliba for the applicants was briefed by Atherstone and Cook Attorneys, specifically Chris Mhike and Tawanda Nyamasoka. Adv Jonathan Berger from the Johannesburg Bar provided research assistance to the legal team, with the support of SALC.