Case Summary and Outcome

The Zimbabwean Constitutional Court found that Section 31(a)(iii) of the Criminal Law Codification Reform Act violated 24(5) of the former Constitution of Zimbabwe. The Minister did not submit an affidavit arguing that the Act was justifiable, despite its inference with citizen’s right, and, instead submitted a challenged to the provision itself, which was later withdrawn. Given the Minister’s failure to submit an affidavit on this matter, the Court was not required to consider the Minister’s views, and it held that the Act interfered with the right to freedom of expression.

Facts

Constantine Chimakure, a former editor of the Zimbabwe Independent, and Vincent Kahiya, the group editor and chief, are Zimbabwean journalists. These two  were prosecuted for publishing a story, which stated that intelligence and police officials were involved in the abduction of opposition and human rights activists in 2008.

The provision in question is Section 31 (a) (iii) of the Criminal Law Codification Reform Act. Section 31 makes the reporting of false news a crime punishable with a high fine and a prison sentence of up to twenty years. To fall within this provision, the news must be that which would undermine public confidence in the uniformed forces.

Decision Overview

In October 2013, pursuant to the former Constitution, the Constitutional Court of Zimbabwe issued a rule nisi. Specifically, the Constitutional Court of Zimbabwe issued a rule nisi that Criminal Law Codification and Reform Act’s Section 31(a)(iii) infringed upon the right to freedom of expression. Under Section 24(5) of the Zimbabwe’s former Constitution, the Minister of Justice, Legal and Parliamentary Affairs (Minister) has the right to persuade the court that Section 31(a)(iii) was justifiable, despite its impact on the right to freedom of expression.

If the Minister is able to show cause, the rule will be “declared to be ultra vires § 20(1) of the former Constitution and accordingly invalid.” The Minister did not exercise this right. Rather, the Minister submitted a document arguing that Section 31(a)(iii) did not infringe upon the right to freedom of expression, instead of arguing for and giving reasons why the law should remain despite its infringement upon this right.

The Minister did not attempt to argue that Section 31(a)(iii) was justifiable or provide factors for the court to consider. The Court noted, however, that 24(5)’s purpose is not to give the Minister, a non-party, the power to review the court’s decisions. Later, a representative of the Minister informed the Court that the Minister would no longer oppose the rule’s confirmation. Accordingly, the Court ordered that 31(a)(iii) of the Act “was in contravention of §20(1) of the former Constitution and therefore void.” Additionally, the Court ordered that the respondent pay for the application’s costs and costs for the rule’s confirmation.

On January 15, 2014 the Minister’s representation indicated that the Minister was no longer wishing to oppose the confirmation of the rule nisi and the order of the court was reversed. The Court ordered that Section 31 (a)(iii) was void since it was in contravention of Section 20(1). Lastly, the Minister was ordered to pay reparations.