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Madanhire v. Attorney General

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    June 12, 2014
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    CCZ 2/14
  • Region & Country
    Zimbabwe, Africa
  • Judicial Body
    Constitutional Court
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Defamation / Reputation
  • Tags
    Criminal Defamation, Human Rights, Imprisonment, Libel

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Case Analysis

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.  It remained open whether the criminalization of defamation would be permitted under the current Constitution (this was decided in the case Misa Zimbabwe-et al v Minister of Justice et Al).


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.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The Court narrowly construed the government’s punitive restrictions on freedom of expression and access to information. The Court held that criminal sanctions against defamatory statements amount to excessive and disproportionate restrictions on the free flow of information in the public domain.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • UNHR Comm., General Comment No. 34 (CCPR/C/GC/34)
  • UNHR Comm., General Comment No. 22

    “States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”

  • UNHR Comm., Adonis v. The Philippines, Comm. No. 1815/2008

    The Human Rights Committee ruled that the criminal sanction of imprisonment imposed by Philippines Revised Penal Code for libel was neither necessary nor reasonable.

  • ACmHPR, Res169 (XLVIII) 2010: Resolution on Repealing Criminal Defamation Laws in Africa

    The African Commission on Human and Peoples’ Rights mandates the states parties to the African Charter to “repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments.”

National standards, law or jurisprudence

  • Zim., Constitution of Zimbabwe (1980), sec. 20(1).

    “[No] person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.”

  • Zim., Retrofit (Pvt) Ltd v. Posts Telecommunications Corp. [1996] 4 LRC 489

    The Constitutional Court of Zimbabwe recognized the freedom of expression as a core value of a free and democratic society.

  • Zim., United Parties v. Minister of Justice, [1997] (2) ZLR 254

    The Constitutional Court of Zimbabwe recognized the freedom of expression as a core value of a free and democratic society.

Other national standards, law or jurisprudence

  • S. Afr., Hoho v. S, (493/05) ZASCA 98 (Sept. 17, 2008)

    The Constitutional Court of Zimbabwe dissented with the opinion of the South African Supreme Court of Appeal, which held that criminalization of defamatory statements was reasonably required for the protection of one’s reputation.

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision of the Constitutional Court of Zimbabwe, as the sole authority to interpret the Constitution, binds the lower courts and establishes the judicial precedent concerning the unconstitutionality of Section 96 of the Criminal law under the country’s former Constitution.

Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

The decision is among a few judicial rulings rendered by African national courts that has held the criminalization of defamatory statements imposes serious restrictions on freedom of expression and access to public information.

The decision was cited in:

Official Case Documents

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