Case Summary and Outcome

The Constitutional Court of Zimbabwe declared the offense of criminal defamation as unconstitutional and inconsistent with the protection of freedom of expression under the country’s former Constitution. In November 2011 a journalist and an editor were charged with criminal defamation after the publication of an article critical of a medical aid company. The Court was of the opinion that the criminalization of defamatory statements lacked proportionality, and was not a necessary means to protect the reputation, rights and freedoms of individuals. The Court further found the imposition of criminal sanctions against the publication of inaccurate or erroneous statements inherently carries the adverse effect of silencing the free flow of information on public matters. However, it remained open whether the criminalization of defamation would be permitted under the new Constitution.

On 6 February 2016, the Constitutional Court affirmed in MISA-Zimbabwe v. Minister of Justice that criminal penalties for defamation were a disproportionate and unnecessary interference with freedom of expression.

Facts

On November 06, 2011, The Standard Newspaper, an independent weekly media outlet, published an article concerning the Green Card Medical Aid Society. The Newspaper alleged that the Society was in financial turmoil, as it was unable to pay its staff, as well as its creditors.

Subsequently, the government of Zimbabwe arrested the Newspaper’s editor and a reporter (the applicants) for criminal defamation. It was alleged that they published the article with the knowledge of its falsity, and with the intent to cause substantial harm to the Society’s reputation.

The applicants appealed the case to the Constitutional Court and asked for the permanent stay of criminal prosecution.

Decision Overview

Justice Patel JA delivered the Court’s opinion. The main issue was whether the offense of criminal defamation was a reasonable restraint on freedom of expression protected under Section 20(1) of the country’s former Constitution.  Pursuant to Section 96 of the Criminal Law Code of Zimbabwe, dissemination of false information with intent to cause harm to the reputation of another person amounts to criminal defamation, punishable by fine or maximum of two years imprisonment.

The Court applied a three-part test in analyzing the criminal statute under the former Constitution: (1) whether its objective was sufficiently important to justify limiting the freedom of expression; (2) whether the punitive measures of the law were rationally connected to its objective, and (3) whether the criminal sanctions used to limit the freedom of expression were necessary to accomplish the objective.

The Court held that the law was rationally related to the important objective of protecting the reputation, rights and freedoms of individuals.  However, the Court was of the opinion that the criminalization of defamatory statements lacked proportionality, and was not a necessary means to accomplish such objective.

The Court reasoned that the imposition of criminal sanctions against the publication of inaccurate or erroneous statements inherently carries the adverse effect of silencing the free flow of information on public matters. According to the Court, “[i]t is inconceivable that a newspaper could perform its investigative and informative functions without defaming one person or another.”

The Court also viewed that the availability of monetary damages in civil law for defamation as a compelling reason to regard the invocation of criminal defamation as “unnecessary, disproportionate, and therefore excessive.”

The Court concluded that Section 96 of the Criminal Law Code was inconsistent with the freedom of expression guaranteed under Section 20(1) of the former Constitution.

However, it noted that it might be “argued that the offence of criminal defamation is a justifiable limitation on the freedom of expression as envisaged by s 86 of the new Constitution”. This was a matter “for argument and consideration as and when an appropriate case is brought for determination before this Court”.

In the case of 6 February 2016 Misa Zimbabwe-et al v Minister of Justice et Al the Constitutional Court declared the offense of criminal defamation unconstitutional and inconsistent with the protection of freedom of expression. This put an end to the uncertainty about the status of criminal defamation in Zimbabwe.