The Case of Kairat Bektenov and others
Closed Expands Expression
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The Supreme Court of Zimbabwe declared the criminal law on “false news” to be unconstitutional on the basis that it was too vague to constitute a “law” under the Constitution. The case arose after the editor of the Standard newspaper in Zimbabwe and one of the newspaper’s senior journalists were arrested and charged with publishing “false news” following the publication of an article describing a failed coup d’etat. The Court provided a detailed analysis of the history of the offence, and relevant international and national jurisprudence related to “false news”. As well as failing to constitute “law” under the Constitution, the Court also found the offence of “false news” to be unnecessary, overbroad, and not “reasonably justifiable in a democratic society”.
On January 10, 1999, a weekly newspaper in Zimbabwe called the Standard published an article entitled “Senior Army Officers Arrested,” which described a failed coup d’etat and the subsequent arrest of twenty-three soldiers. The article claimed that the coup was caused by dissatisfaction with the mismanagement of the economy and with the Zimbabwean army’s involvement in a war in the Democratic Republic of the Congo, and that some soldiers had refused to participate in that war. Mark Gova Chavunduka, the editor of the Standard, and Raymond Morgan Choto, the author of the article, were arrested and charged with the publication of a “false statement likely to cause fear, alarm or despondency” under section 50 (2)(a) of the Law and Order (Maintenance) Act (Chapter 11:07) (section 50(2)(a)).
Section 50(2) made it an offence to make, publish or reproduce any “false statement, rumour or report which (a) is likely to cause fear, alarm or despondency among the public or any section of the public; or (b) is likely to disturb the public peace.” Under Section 50(1) of the Act, the term “statement” was defined as including “any writing, printing, picture, painting, drawing or other similar representation.” The offence carried a maximum term of imprisonment of seven years . The provision also offered a defence to the accused where he could demonstrate that “before making, publishing or reproducing, as the case may be, the statement, rumour or report he took reasonable measures to verify the accuracy thereof.” (p.4)
Mr. Chavunduka and Mr. Choto were granted bail by the Magistrates Court. On July 2, 1999, while on bail, they applied to the Supreme Court of Zimbabwe seeking a declaration that section 50(2)(a) was a violation of their rights under section 20 (right to freedom of expression) and section 18 (right to a fair trial) of the 1980 Constitution of Zimbabwe.
Gubbay CJ (Gubbay) delivered the majority judgment of the full bench of the Supreme Court of Zimbabwe (Court). McNally JA (McNally) delivered a separate but concurring judgment.
The Court was required to determine whether section 50(2)(a) concerned expression that was protected under the Constitution, and then whether the purpose or effect of the provision was to restrict such expression. If these two conditions were met, then the Court would move on to consider whether the provision was unconstitutional in light of section 20 of the Constitution.
Gubbay began by providing a detailed analysis of the history of the offence codified in section 50(2)(a). He explained that it fell under the category of “false news” offences, and that these were first introduced by Westminster, England in 1275 through a law called Scandalum Magnatum. This law stated that “from henceforth none be so hardy to tell or publish any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm.” (p. 5) He explained that the purpose of these offences had been to prevent false statements “which in a society dominated by extremely powerful landowners could threaten the security of the state”, but that the offences had become obsolete before their official repeal in the United Kingdom in 1887. (p.5)
In Zimbabwe, the first codification of the “false news” offence was in colonial Rhodesia in 1955 through the Public Order Act. Gubbay recognized that the offence had been harshly criticised as being an infringement of the right to freedom of expression, but that it had been “justified by the government of the day on the basis that it would provide a safeguard against the attempts of irresponsible journalists and rumour mongers to ‘create chaos out of order’.” (p. 6) The current formulation of the offence was introduced in 1961, when the Public Order Act was repealed and replaced by the Law and Order (Maintenance) Act. Gubbay said that the current offence was substantially the same as the offence under the Public Order Act, except that it had extended the scope of the offence by criminalising conduct which was “likely” to cause harm (whereas under the Public Order Act conduct had to have been “calculated” to cause harm for it to be a crime), and placed the burden on the accused to demonstrate that he or she had taken reasonable measures to establish the veracity of the statement before publication. (p. 6)
Turning to section 20 of the Constitution, Gubbay reiterated that “freedom of expression has four broad special objectives to serve: (i) it helps an individual to obtain self-fulfilment; (ii) it assists in the discovery of truth, and in promoting political and social participation; (iii) it strengthens the capacity of an individual to participate in decisionmaking; and, (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.” (p. 7)
Gubbay conducted a thorough exploration of foreign jurisprudence on the protection to be afforded under the right to freedom of expression to unpopular and false statements. Taking into account this jurisprudence, he concluded that statements, opinions and beliefs regarded by the majority as being false and wrong plainly fell within the protections afforded by the right to freedom of expression. He noted that “[m]ere content, no matter how offensive (save where the expression is communicated in a physically violent form), cannot be determinative of whether a statement qualifies for the constitutional protection afforded to freedom of expression.” (p. 8) In light of this, Gubbay concluded that the expression in the case before him was protected by the Constitution. (p. 10) Furthermore, he concluded that the purpose and effect of section 50(2)(a) was to restrict protected expression. He went on to observe that the “reality of being liable to criminal conviction and imprisonment for a period not exceeding seven years results very definitely in a curtailment of free expression.” (p. 10)
Having determined that the expression in question was protected by the Constitution and that section 50(2)(a) limited that expression, the main question before the Court was whether that limitation was justifiable in terms of section 20(2) of the Constitution. Section 20(2) permitted limitations to the right to freedom of expression if (i) the limitations were “done under the authority of any law,” (ii) the limitations were imposed in the interests of, inter alia, public safety, and (iii) the limitations were “reasonably justifiable in a democratic society”. (p. 11)
Gubbay first examined whether section 50(2)(a) constituted a “law” in line with the first requirement under section 20(2) of the Constitution. He said that although the wording of section 20(2) of the Constitution differed slightly from provisions protecting the right to freedom of expression in other instruments, the requirement that a limitation be “done under the authority of any law” was to be interpreted the same way as the requirement that limitations be “prescribed by law” or “provided by law”. (p.11) With this in mind, Gubbay noted that the law must be “adequately accessible and formulated with sufficient precision to enable a person to regulate his conduct. He or she must know, with reasonable certainty, what the law is and what actions are in danger of breaching the law.” (p. 12) With reference to the vagueness of criminal law, he stated that “[a]n inadequate demarcation of an area of risk affords neither notice to a person of conduct which is potentially criminal, nor an appropriate limitation upon the discretion of the authorities seeking to enforce the provision.” (p.12)
Gubbay reasoned that even stricter standards of permissible statutory vagueness were to be applied where freedom of expression was at issue for “at jeopardy are not just the rights of those who may wish to communicate and impart ideas and information but also those who may wish to receive them.” (p. 13)
In assessing whether section 50(2)(a) passed the first requirement that a limitation be made “under the authority of any law”, Gubbay highlighted that the provision did not only criminalize statements that actually caused fear, alarm or despondency, but also those statements that were likely to do so. He said that there was “no requirement of proof of any consequences – of damage to the state or impact upon the public”, and called the offence a “speculative offence”. (p. 14) He held that because the provision was concerned with likelihood rather than reality, and since the passage of time between publication and trial was irrelevant, it was too vague. He noted that this vagueness could cause a “chilling effect” since people would steer clear of the potential zone of application of the law.
Gubbay also remarked that the expression “fear, alarm or despondency” was overbroad as anything “newsworthy is likely to cause, to some degree at least, in a section of the public or in a single person, one or other of these subjective emotions.” (p. 14) He added that the “use of the word ‘false’ is wide enough to embrace a statement, rumour or report which is merely incorrect or inaccurate, as well as a blatant lie; and actual knowledge of such condition is not an element of liability; [therefore] negligence is criminalized.” (p. 15) Gubbay also noted that it was not always possible to categorize statements as “fact” or “opinion” (e.g. in cases of figures of speech, metaphor, and comedy).
Gubbay concluded that section 50(2)(a) failed to meet the requirement of being “under the authority of any law,” noting that it gave general discretion to the Attorney General as to whether to prosecute or not. Notwithstanding that this finding would be sufficient to declare the provision unconstitutional, Gubbay continued to determine whether the provision would have passed the other requirements under section 20(2) of the Constitution.
Gubbay held that, assuming non-vagueness of terminology, that the provision pursued the legitimate aim of ensuring public safety or public order. In determining whether section 50(2) would be “reasonably justifiable in a democratic society,” Gubbay referred to the earlier cases of the Court (Nyambirai v. NSSA and another 1995 (2) ZLR 1 (S) and Retrofit (Pvt) Ltd v. PTC 1995 (2) ZLR 199 (S)) which had established three criteria for this determination: (i) whether “the legislative objective which the limitation is designed to promote is sufficiently important to warrant overriding a fundamental right”; (ii) whether “the measures designed to meet the legislative objective are rationally connected to it and are not arbitrary, unfair or based on irrational considerations”; and (iii) whether “the means used to impair the right or freedom are no more than is necessary to accomplish the objective.” (p. 19)
Gubbay said that the original legislative intention of the provision was to “pre-empt and counteract threats to the internal security of the country by the publication of statements, rumours or reports considered by the government of the day to be false and capable of instilling in the people, or some of them, feelings of fear, alarm or despondency as to the political, economic or social conditions in the country.” (p. 20) However, he concluded that, as there had been no prosecutions under the provision since Zimbabwe’s independence, there was “no longer a primary objective directed to a ‘substantial concern which justifies restricting the otherwise full exercise of the freedom of expression’”.(p. 20) In addition, he said that the provision was not “necessary to fulfil any international obligation undertaken by the state.” (p. 21) He concluded that “no objective of pressing and substantial concern has been identified in support of [section 50(2)(a)’s] survival.” (p. 21).
He also observed that there were other criminal offences which remained on the statute book that could address legitimate threats to public safety or public order. Gubbay also said that as the provision had not been used since independence it “strongly suggests that it is not rationally connected to, and essential for, the intended objective of avoiding public fear, alarm or despondency and so to the securement of public safety or public order. The anticipated danger is remote and conjectural. Absent is a proximate and direct nexus with the prohibited expression”. (p. 22)
Gubbay then analyzed other jurisdictions in which there were either no “false news” offences or those offences were only applied in limited circumstances. He observed that in Australia, France, the Netherlands, the United Kingdom, the United States, and Canada there were no “false news” offences, while in India, Denmark, Germany and Italy the offences were of a very narrow scope.
Gubbay also stated that, even if there was a rational link between the legitimate aim being pursued and section 50(2)(a), the “breadth of the provision goes further than necessary to achieve that aim.” (p. 24) He repeatedly referred to the Canadian case of R v. Zundel to reach the conclusion that “the expansive sweep of section 50(2)(a) gives rise to the inevitable consequence of failing to confine and impair the exercise by the applicants of their right to freedom of expression as little as possible.” (p. 26)
The Court gave a declaration that section 50(2)(a) was in contravention of section 20(1) of the Constitution. Given this finding, it was unnecessary for the Court to consider the constitutionality of the offence in light of section 18 of the Constitution.
McNally delivered a supporting judgment in which he added that, despite the Court finding that section 50(2)(a) was unconstitutional, it remained Parliament’s responsibility to re-draft that legislation. He said that his comments were necessary because after a previous judgment from the Court, in In re Munhumeso 1994 (1) ZLR 49 (S), “it was said, by persons who do not seem to understand these things, that the Supreme Court had made the work of the police impossible, because we had tied their hands.” (p.28) He said that “[i]t is the urgent duty of the relevant ministry to rewrite the Act in proper form and to steer it through the necessary constitutional processes.” (p. 28)
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of Zimbabwe undertook a thorough limitations analysis and held that the offence of “false news” was an unjustifiable limitation on the right to freedom of expression. Therefore, the judgment expands expression. The judgment provides a useful and detailed global history of the offence, and demonstrates the vague and over-broad nature of such an offence. The judgment also offers a strong statement on the need to protect statements that are false, inaccurate, or viewed by the majority as being “wrong”. This decision is a useful precedent that should be followed in the numerous jurisdictions around the world that still have (or have since adopted) the colonial-era offence of “false news”.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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