Journalists cannot be arrested for criminal defamation because the law does not exist in the country’s statutes after the Constitutional Court declared it invalid and a violation of provisions of the Constitution, a prominent lawyer has said.
Advocate Lewis Uriri made an opinion as amicus curiae (friend of the court), in a constitutional challenge pitting Media Institute of Southern Africa-Zimbabwe Chapter and the Government.
MISA-Zimbabwe and journalists Nqaba Matshazi, Sydney Saize, Godwin Mangudya and Roger Dean Stringer are seeking the removal of the criminal defamation law from the statutes.
They brought the application following the same court’s landmark ruling in the criminal defamation case of former NewsDay editor Nevanji Madanhire and another scribe early this year.
In that case, Section 96 of the Criminal (Code and Reform) Act, which criminalised defamation was declared invalid and in violation of the old Constitution, but the court did not rule on its validity in terms of the current supreme law.
MISA-Zimbabwe filed a fresh application to invalidate the legislation in terms of the new Constitution. In his opinion, Advocate Uriri argued that the declaration of constitutional invalidity of Section 96 of the Code meant the provision was non-existent as law in Zimbabwe.
“Section 96 does not exist in the Code or anywhere else in Zimbabwe’s law,” argued Adv Uriri. Thus, there can be no arrest or prosecution of the applicants or any other person on its terms.”
The fate of such arrest or prosecution, Adv Uriri submitted, would be inextricably tied to Section 96. Thus Section 96 cannot be a law under a Constitution that took effect after the provision ceased to exist,” he said.
“The non-existence of the law is not only against the repealed Constitution, but also against the entirety of Zimbabwe’s legal system.”
At the last hearing in July, the Chief Justice Godfrey Chidyausiku asked MISA-Zimbabwe and the Government to file supplementary heads of argument on whether or not criminal defamation was still valid law in light of the judgment that declared it unconstitutional in terms of the former Constitution.
The Chief Justice also ordered the parties to state in their papers whether or not the matter of the validity should be heard now or the courts should simply wait for the arrest of another journalist to act and make determination on the validity of the law.
Before the court hears the main arguments in the matter, Chief Justice Chidyausiku wants to hear from the parties concerned if the law survived and is still valid in the new Constitution.
The court said if the law was indeed struck out in the Madanhire case, there was need to find out if the new Constitution had the power to breathe some life into the dead law.