[Bill-Watch] Court Watch 16/2014 of 17th October [Freedom of Expression Case: Criminal Defamation: S v Madanhire & Matshazi]

[Veritas Bill Watch]

COURT WATCH 16/2014
[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 book.  It 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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