[Bill-Watch] Court Watch 15/2014 of 30th August [Freedom of Expression Case: S v Chimakure, Kahiya & Zimbabwe Independent]

[Veritas Bill Watch]

COURT WATCH 15/2014
[30th August 2014]
Freedom of Expression Case 
Constitutionality of Section 31(a)(iii) of the Criminal Law Code 
[Publication of False Statements Prejudicial to the State]  
This bulletin outlines a landmark freedom of expression case that began in
May 2009 in the magistrates court when journalists Chimakure and Kahiya and
the Zimbabwe Independent were charged under section 31(a)(iii) of the
Criminal Law Code with publishing false statements prejudicial to the State.
The defence challenged the constitutionality of this provision and in July
2009 the case was referred to the Supreme Court which was then the court of
referral for constitutional cases.  In June 2010 the Supreme Court heard the
case but delayed its judgment.  That judgment was given in October 2013, and
was based on the former Constitution, the one in force when the alleged
offence was committed and when the case was argued.  [Already argued pending
constitutional cases remained with the Supreme Court when the Constitutional
Court came into being on 22nd May 2013.  Unargued pending cases were
automatically transferred to the new court.]  It was this October 2013
judgment that transferred the case to the Constitutional Court for a final
decision, and gave the Minister of Justice time to provide evidence to
justify the retention of section 33(a)(iii) of the Criminal Law Code.  
The State v Chimakure, Kahiya & ZimInd Publishers (Pvt) Ltd
[Constitutional Application No. SC 247/09]
Background:  Towards the end of 2008 the press were reporting on the
abduction and forced disappearance of a number of human rights and MDC
activists.  After they were eventually brought to court by the police,
various charges were levelled against the activists, including involvement
in acts of sabotage or terrorism and recruiting for training in sabotage and
terrorism aimed at overthrowing the government.  The Zimbabwe Independent,
which had covered the whole saga, reported on the contents of indictment
papers and case summaries filed by the Attorney-General with the High Court
for the trial of one group of those abductees in July 2009.  The articles
named individual senior police and CIO personnel as allegedly involved in
the abductions of the activists.  The Attorney-General regarded this as
amounting to publication of false statements prejudicial to the State, and
The Zimbabwe Independent's editor and a senior journalist were arrested and
charged, together with a representative of the newspaper company, under
section 31 of the Criminal Law Code.  This section creates a criminal
offence styled "publishing or communicating false statements prejudicial to
the State" and provides for the imposition of a fine of up to $5000 or
imprisonment of up to 20 years, or both, on anyone convicted.  The alleged
prejudice to the State in this case was the undermining of public confidence
in the police and the Central Intelligence Organisation, so the specific
charge was contravening section 31(a)(iii), the part of section 31 dealing
that particular type of prejudice to the State.  [Note: The accused have all
along denied that anything in the articles in question was false.]
On 30th July 2009, before the case against the journalists and their
newspaper started, the presiding magistrate referred the constitutionality
of section 31(a)(iii) of the Code to the Supreme Court, and the case was
argued there on 3rd June 2010.  The accused asked the court to declare that
the provision was void as being inconsistent with the freedom of expression
guarantee in section 20 of the former Constitution.  The prosecution
defended the provision as constitutional.  The court reserved judgment and
retained control of the already-argued case under the transitional
provisions of the new Constitution in May 2013.  Judgment was eventually
handed down, by the Supreme Court, on 30th October 2013, more than three
years after the case had been argued.  
Apology for delay in judgment  Justice Malaba apologised for the delay in
giving judgment, attributing it to "the fact that reasons for judgment in
the case of Jestina Mukoko v The Attorney-General SC-11-12 had to be given
first".  
Note: Jestina Mukoko, a prominent human rights activist, was one of the 2008
abductees mentioned above.  The case referred to by Justice Malaba is the
one Mrs Mukoko took to the Supreme Court, alleging State violation of her
constitutional rights by her abduction by State agents and her treatment by
them during the period she was "disappeared".  That case was argued in the
Supreme Court 25th June 2009 and the court unanimously ruled in her favour
on 28th September 2009, with a brief order granting her a perpetual stay of
prosecution on criminal charges that were based solely on a statement
extracted from her by State agents by means of torture and inhuman and
degrading treatment.  The court said its reasons for judgment would come
later.  Three years later these reasons for judgment were released, on 20th
September 2012.  Another 13 months passed before delivery of judgment in the
present case on 30th October 2013.  
Comment: It is hard to see why the reasons for judgment in the Jestina
Mukoko case had to be given first when the court's unanimous decision in
that case had already been announced some three years before those reasons
were given.  This means the court had reached sufficient consensus on the
facts and the law to grant its final order in her favour on 28th September
2009.  And the further 13 months' delay between the Mukoko reasons for
judgment on 30th September 2012 and this judgment on 30th October 2013 seems
unduly long. 
Summary of the judgment of 30th October 2013  This was written by Deputy
Chief Justice Malaba.  Chief Justice Chidyausiku and Justices Ziyambi, Garwe
and Cheda concurred.  [Judgment No. SC 14/2013 is available from the
addresses given at the end of this bulletin].  The judgment, citing UN texts
and decided cases from the United States, Canada and India, as well as a
leading Zimbabwean Supreme Court decision written by Chief Justice Gubbay in
the Chavunduka case in 2000, explains the importance of freedom of
expression, why it must be constitutionally protected, why it is not an
absolute or unqualified right, why the mere fact that a statement is false
does not disqualify it from the Constitution's protection, and why
criminalising the making of a statement in principle constitutes an
interference with freedom of expression.  This clears the way for the
consideration of the main question in the case: whether this interference
was permitted by section 20(2) of the former Constitution, which permits
freedom of expression to be restricted by or under a "law" that is made to
protect certain specified objectives [e.g. public safety, public order,
public health], but only if the restriction is "reasonably justifiable in a
democratic society".    
The court considered this question in the three stages that are customarily
followed in such cases, according to long-established precedent.  
1.   Was the restriction constituted by a "law"?  Yes.  The court rejected a
defence contention that section 31(a)(iii) was too vague and uncertain to be
accepted as a law.  
2.   Did section 31(a)(iii) have a constitutionally permissible objective?
Yes.  The court said the provision was obviously intended to protect "the
interests of public order and the preservation of public safety".  
3.   Was the restriction reasonably justifiable?  No.  The court, having
weighed up the legal arguments from both sides and decisions in other cases,
concluded that section 31(a)(iii) went beyond what was necessary and
proportionate to the achievement of its legitimate objective.  Several
factors prompted this conclusion, including the overbroad scope of the
provision, its "chilling effect" on legitimate speech and the draconian
punishment of up to 20 years imprisonment.  
But the court invited submission from Minister of Justice  This judgment did
not, however end the case, because the Minister responsible for the Code,
the Minister of Justice, Legal and Parliamentary Affairs, had not been a
party to the case and was therefore entitled, under the former Constitution,
to an opportunity to provide the court with evidence that the infringement
was reasonably justifiable in a democratic society.  So the court called on
the Minister, in terms of section 24(5) of the former Constitution, to show
cause to the Constitutional Court on 20th November, if he so wished, why
section 31(a)(iii) of the Code should not be declared void.  This in effect
transferred the case to the Constitutional Court for final disposition.
[Note:  There has been understandable public confusion about this court
order, and the effect of section 24(5) of the former Constitution in this
and other cases.  See the end of this bulletin for an explanation of why the
court, having expressed apparently definite views on the unconstitutionality
of a statutory provision, nevertheless gave the Government a second chance
to persuade it to reach the opposite conclusion.]  
Minister's response to the court's order  At the November hearing, the
Minister submitted a document criticising the legal reasoning in the court's
judgment, but failed to provide any evidence of factors, not previously
brought to the court's attention, which might have shown that the provision
was in fact so justifiable, which was what the court had envisaged.  The
court granted a postponement.  Finally, on 15th January 2014, the court was
informed that the Minister no longer opposed an order declaring section
31(a)(iii) unconstitutional and void.  This really ended the case in favour
of the journalists, but the court delayed handing down its order, because it
wanted to clarify section 24(5) of the former Constitution.  
Court's decision of 22nd July nullifying section 31(a)(iii)  The court's
brief final judgment was issued on 22nd July.  It ended with an order
declaring section 31(a)(iii) of the Criminal Law Code in contravention of
section 20(1) of the former Constitution and therefore void.  The Minister
was ordered to pay the journalists' costs.  [Judgment No. CCZ 6/2014 is
available from the addresses given at the end of this bulletin].  At last,
almost five years after first challenging the constitutionality of section
31(a)(iii), Mr Chimakure and Mr Kahiya could claim a definitive victory in
their six-year struggle.  Neither they nor anyone else can now be prosecuted
for contravening that provision.
Reason for Inviting Minister's Submission
Section 24(5) of the former Constitution catered for the situation in which
a statutory provision is challenged in the Supreme Court and in which the
Minister responsible for the Act or statutory instrument has not been a
party to the proceedings; for example, a case between two individuals and/or
organisations, or a case such as the present in which the dispute was
between accused persons and the State in the person of the Attorney-General.
If, after argument in this sort of case, the court considers the challenged
provision to be not reasonably justifiable in a democratic society, it must
give the responsible Minister the opportunity of producing proof to its
satisfaction that the provision is reasonably justifiable.  
As the court put it in its final judgment in this case on the 22nd July, the
Minister is given "an opportunity to put before the court facts within his
or her knowledge, and of which the court was unaware, with the view of
persuading it not to find that the enactment is not reasonably justifiable".
The court will thereafter reject any attempt by the Minister to reactivate
the legal argument. 
This is so even if the Court thinks that it may not be possible for the
Minister in the particular circumstances of the case to produce any proof
which might satisfy the court.  This was laid down many years ago by Chief
Justice Beadle, referring to the equivalent of section 24(5) in the 1961
Constitution.  In other words, section 24(5) recognises the possibility,
however remote, that the responsible Minister, backed by his or her
Ministry's knowledge of the legislation and the reasons for it, may be able
to put up a reasonable justification for the provision that has not occurred
to the court or the other parties.  
There is no provision equivalent to section 24(5) in the present
Constitution.  The present Constitution leaves it to an Act of Parliament or
the rules of court to regulate the procedure for dealing with cases in the
Constitutional Court.  No Act and no new rules of court have yet been
enacted.  The perceived need catered for by section 24(5) and its
predecessors could probably be satisfactorily dealt with by a different
procedure - preferably one less likely than section 24(5) to cause delays
and, as happened in the present case, provoke confusion and premature
excitement over a provisional conclusion that might possibly be overturned
later.  It remains to be seen what is produced by those responsible for
devising the procedure for Constitutional Court cases.
 
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