Case Summary and Outcome

The Supreme Court in Zimbabwe ruled that the offense of contempt of court in the form of scandalizing the court was constitutional. The Attorney General, Patrick Chinamasa, had been called to the High Court to explain why his comments in the media criticizing a sentence handed down by the High Court did not constitute contempt. Chinamasa raised a number of constitutional issues – including whether the offense infringed his right to freedom of expression – and requested referral to the Supreme Court for the determination of the constitutionality of the offense and its procedure. The Supreme Court reasoned that the offense of contempt of court in the form of scandalizing the court still existed in Zimbabwe law; that Chinamasa’s statements were protected speech in terms of the Constitution; and that because scandalizing the court was narrowly defined, it was a justifiable limitation to the constitutional right of freedom of expression.

Facts

In September 1999 Patrick Chinamasa, the then-Attorney-General for Zimbabwe, issued a statement in the Herald newspaper criticizing a High Court judgment which had sentenced three U.S. nationals to an effective six-month jail term for possessing weapons and attempting to take them on board an aircraft. Chinamasa said the “Attorney General’s office is shocked and outraged” and that the sentences imposed induced a “sense of shock and outrage in the minds of all right-thinking people”. He also said that he intended to appeal the sentence which he described as “trivialising the seriousness of the crime” (p. 1298). The High Court judge who had issued the sentence then ordered Chinamasa to appear before the High Court “to show cause why an Order of Contempt should not be made for the willful and intentional contemptuous statement issued by you” (p. 1299).

The contempt of court matter came before a different judge, and the judge appointed a legal practitioner to act as amicus curiae and present the complaint against Chinamasa (p. 1299). Chinamasa sought a reference to the Supreme Court for the determination of a number of constitutional matters: whether the High Court can present allegations of contempt of court; whether the appointment by a judge of an amicus curiae to present the complaint is an infringement of the right to be tried by an independent and impartial court; whether the procedure adopted violates various aspects of Chinamasa’s right to a fair trial; whether the procedure by which the individual has to show why an order of contempt should not be issued infringes the presumption of innocence; and whether the contempt proceedings violate Chinamasa’s right to freedom of expression under section 20 of the 1980 Constitution (p. 1300). The High Court dismissed the arguments on the right to a fair trial, but referred the questions relating to the presumption of innocence, whether the procedure by which the individual is “tried by the court which complains about the contempt” violates the right to be tried by an independent and impartial court and whether the offense of contempt of court infringes the right to freedom of expression.

Accordingly, the Supreme Court heard arguments on the constitutionality of the offense to the extent that it infringes the right to freedom of expression and the procedure adopted violates the presumption of innocence.

Decision Overview

Gubbay CJ delivered the unanimous judgment of a full bench.

Gubbay stated that the main issue for the Court to determine was whether “the law of contempt of court under the common law of Zimbabwe is such as cannot be shown ‘to be reasonably justifiable in a democratic society’ and, therefore, is incompatible with the provisions of section 20 of the Constitution” (p. 1302). The secondary question was whether scandalizing the court continued to exist as an offense under Zimbabwe’s common law.

Gubbay explained that there are two forms of contempt of court: “contempt in facie curiae, which encompasses any word spoken or act done within the precinct of the court that obstructs or interferes with the due administration of justice, or is calculated to do so” and contempt ex facie curiae which is “words spoken or published or acts done which are intended to interfere with, or are likely to interfere with, the fair administration of justice” (p. 1302). Gubbay said that scandalizing the court is a form of the second category and that it “is committed by the publication, either in writing or verbally, of words calculated to bring a court, a judge of a court, or the administration of justice through the courts generally, into contempt” and that it “need not be an attack directed at any specific case, either past or pending, or at any specific judge” (p. 1302).

Gubbay provided a comprehensive analysis of the foreign jurisprudence on the continued use of the offense. He referred to the U.K. case of R v. Gray [1900] which had confirmed the continued existence of the offense of scandalizing the court in the U.K. He said that the offense existed in Canada, and referred to the cases of R v. Kopyto (1988) and Re Duncan (1958), and in New Zealand, per Solicitor-General v. Radio Avon Ltd [1978]. Scandalizing the court was confirmed in Australia in R v. Dunbabin; Ex parte Williams (1935), but the scope of the offense had been narrowed by the court in Attorney-General for New South Wales v. Mundey [1972]. Gubbay highlighted the U.S. case of Bridges v. State of California 314 US 252 (1941) in which the Supreme Court acknowledged that the offense no longer existed in the U.S. In South Africa, the offense had first been recognised in In re Neethling (1874) and then confirmed in S v. Van Niekerk (1972) where it was held that an offense is even committed “by exhorting the judiciary to embark on a course of action which is in clear conflict with its duties”. Gubbay said that although the issue of the existence of the offense of scandalizing the court had not been discussed by the courts in Zimbabwe, it was fair to accept that the offense was part of the common law (ps. 1303-5).

Gubbay went on to explain that the difficult issue was how to draw the line between criticism of the judiciary that is legitimate and that which constitutes contempt of court. He quoted the South African case of S v. Van Niekerk and the U.K case of R v. Metropolitan Police Commissioner, Ex parte Blackburn (No 2) [1968] where the courts commented that fair comment, within the limits of reasonable courtesy and faith, should not be considered contempt. Gubbay noted the legal scholarship that argued that scandalizing the court should not exist on the grounds that “courts, like other public institutions, should be open to lively and constructive criticism and do not need, and should not have, specific rules for their protection”. However, he said while scandalizing contempt remained an offense according to the common law of Zimbabwe, the advent of the Constitution made it necessary to review the offense in order to ensure that it met the requisite constitutional standards (p. 1305-6).

Gubbay then examined whether Chinamasa’s words constituted expression protected by the Constitution. First, he referred to the Zimbabwean case of United Parties v. Minister of Justice 1997 and stated that the courts have “given a benevolent and purposive interpretation” to the right to freedom of expression and that perhaps the most significant objective of the right is how it facilitates the search for truth. He quoted Justice Holmes who discussed how the “marketplace of ideas” leads to truth in the U.S. case of Abrams v. United States (1919) and stated that it “is indeed difficult to imagine a more crucial protection to a democratic society than that of freedom of expression”, and, with reference to the European Court of Human Rights in Handyside v. United Kingdom (1979-1980) and the Canadian case of R. Kopyto stated that “[t]he use of colourful, forceful and even disrespectful language may be necessary to capture the attention, interest and concerns of the public to the need to rectify the situation protested against or prevent its recurrence”. He also referred to a recent decision by the Zimbabwean Supreme Court, Chavunduka v. Minister of Home Affairs (2000), which had explicitly stated 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” (ps. 1306-7).

Gubbay therefore concluded that Chinamasa’s statements fell within the category of protected speech in terms of section 20 of the Constitution. He then examined whether the limitation on the right to freedom of expression by the offense of scandalizing the court was a permissible limitation in terms of section 20(2) of the Constitution. Section 20(2) permits the limitation of the right if the limitation is “contained in any law”, done for the purpose of, inter alia, “maintaining the authority and independence of the Courts” maintaining the authority and independence of the courts . . .except so far as that provision . . . is shown not to be reasonably justifiable in a democratic society”.

Scandalizing the court, as part of the common law, clearly met the requirement that the limitation be “contained in any law”, and the offense was clearly designed to serve the purpose of maintaining the judiciary’s authority and independence. The limitation passed the first two legs of the test and Gubbay said that the crucial question was whether the limitation was reasonably justifiable in a democratic society. He confirmed that in Zimbabwe, unlike in Constitutions of other countries “the burden of proof is on the challenger to establish that the impugned law goes further than is reasonably justifiable in a democratic society”. He referred to the Zimbabwean cases of Nyambirai v. National Social Security Authority 1995  and Retrofit (Pvt) Ltd v. Posts and Telecommunications Corporation 1995 which had established that the criteria for determining whether the limitation is not arbitrary or excessive was whether “[t]he objective which the limitation in the law is designed to promote is sufficiently important to warrant overriding a fundamental right; the measures designed to meet the objective are rationally connected with it and are not arbitrary, unfair or based on irrational considerations; [and] the means used to impair the right or freedom are no more than is necessary to accomplish the objective”). Gubbay referred to the Privy Council case of Ahnee v. Director of Public Prosecutions [1992]in which the Privy Council had held that there may have been a need to maintain the offense of scandalizing the court in Mauritius because “the administration of justice is more vulnerable than in the United Kingdom”. Gubbay said that irrespective of whether that was truly the case in Mauritius, “our courts are strong enough to withstand criticism after a case has been decided no matter how scurrilous that criticism may be”. However, he accepted the other justification given in the Ahnee case for the retention of the offense, namely that the narrow scope of the offense means that it is necessary in a democratic society. He said that as judges are unable to publicly respond to criticism they need protection that is unnecessary to give to other public figures. Additionally, he said that “[c]riticism which imputes improper or corrupt motives or conduct to those taking part in the administration of justice, which “excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office”, does create a real or substantial risk of impairing public confidence in the administration of justice” (ps. 1308-1310).

Gubbay provided a detailed analysis of the Canadian case of R v. Kopyto and said that the minority judgment which favoured the “serious risk test” should be followed dismissing the American “clear and present danger” test on the basis that  it created the impression that the “dignity of the bench” was what was sought to be protected when the purpose of the offense was rather to “protect public confidence in the administration of justice” (p.1311).

Gubbay then applied the proportionality test set out in Nyambirai and Retrofit. He accepted that the purpose of the offense of protecting the public confidence in the administration of justice was sufficiently important, and that there was a rational connection between that purpose and the offense. He further held that there were no other means of achieving the goal of the limitation as it would not be satisfactory for the Attorney General to lead the contempt of court proceedings, because the relief would need to be swift. Accordingly, Gubbay concluded that Chinamasa had failed to demonstrate that scandalizing the court was a limitation that was not reasonably justifiable in a democratic society, and so held that the offense was constitutional (ps. 1311-2).

Gubbay also held that the procedure of assigning a High Court judge who had not personally been the subject of the allegedly contemptuous statements was “entirely proper”, and that the requirement that an individual demonstrate why he or she should not be held in contempt was not an infringement of the presumption of innocence (ps. 1314-5).