Case Summary and Outcome
The Constitutional Court of Zimbabwe dismissed Arthur Mutambara’s claim that the contempt of court provision of the Criminal Law Code and his arrest thereunder were unconstitutional. Mutambara, an opposition politician, was charged with contempt of court after publishing an article in a national newspaper accusing the judiciary of facilitating collusion between the ruling party and the electoral commission. The Court reasoned that Mutambara’s statements went beyond the realm of political speech because they were a direct attack on the judiciary. In these circumstances his arrest and prosecution did not violate his constitutional right to freedom of expression.
In April 2008, Arthur Mutambara, the President of the Mutambara faction of the opposition political party, the Movement for Democratic Change, wrote an article titled “A shameful betrayal of national independence” about electoral fraud in Zimbabwe following national elections. The name of the newspaper in which the article was published was not mentioned by the Court. Mutambara accused the ruling party, ZANU-PF, of attempting to seize control of the National Assembly by ordering recounts of the votes cast in the 2008 national election and of creating the need for by-elections through court action. He also alleged that ZANU-PF had criminally colluded with the Zimbabwe Electoral Commission (ZEC) (p.2). In addition, he called the judiciary “compliant and pliable” (p.7) and stated that the judiciary would facilitate the collusion between ZANU-PF and the ZEC as he predicted that any challenge to the ZANU-PF’s conduct by any opposition party would fail in the courts. Mutambara referred to a case decided by the High Court as being evidence of the judiciary’s “pliability”
Mutambara and the editor of the newspaper were charged under section 182(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) which criminalises contempt of court in Zimbabwe. Section 182(1) states that “Any person who, by act or omission, impairs the dignity, reputation or authority of a court (a) intending to do so or (b) realising that there is a real risk or possibility that his or her act or omission may have such an effect shall be guilty of contempt of court and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both” (p.2).
Mutambara challenged his arrest and prosecution on the grounds that they infringed his right to freedom of expression (under section 20(1) of the 1980 Constitution), freedom of association (under section 21(1) of the 1980 Constitution) and protection from discrimination (under section 23 of the 1980 Constitution). He sought a stay of prosecution and, alternatively, that section 182(1) be declared unconstitutional.
Gwaunza JA delivered the unanimous judgment of a full bench.
The Court was required to determine whether the statements made by Mutambara were protected under the Constitution and, if so, whether section 182(1) was an unjustifiable limitation of his rights to freedom of expression, freedom of association and protection from discrimination.
Mutambara argued that Zimbabwean courts in In re Munhumeso 1995 (1) SA 551 (ZCC), Woods v. Minister of Justice 1994 (2) ZLR 195 (S) and Madzingo v. Minister of Justice 2005 (1) ZLR 171 (S) had recognised the importance of the right and the need to protect free expression. Mutambara submitted that the statements he made in the article should be protected under the Constitution as they “fell under the category of political speech which is ordinarily afforded highest protection against interference or restriction under the constitutional freedom of expression provisions” and “statements concerning public officials and other individuals who perform public services are afforded greater protection and this was essential for the functioning of a truly democratic society” (p.4). He said that the article referred to a judicial decision of a political nature and so “any reference to the judiciary bordered on the incidental and therefore could not have been serious” (p.4). He referred to the South African case of S v. Mamabolo 2001 (2) SA 409 CC and argued that “criticism of public authority including the judiciary is a valuable element of the freedom of expression because the ability to criticise the courts promotes impartiality, accessibility and effectiveness, serves as a democratic check on the judiciary and promotes peace and stability” (p.4-5) and that “genuine, albeit ‘rigorous’ criticism of the judiciary is acceptable, as long as it stayed within the limits of reasonable courtesy and good faith” (p.5). He submitted that, consequently, he should not have been charged under section 182(1), and, in addition, the State had failed to prove any facts which demonstrated that “there was any impairment of the dignity, reputation or authority of the court” (p.5).
Mutambara also argued that his freedom of association had been infringed by his arrest and the arrest of the newspaper editor and director. He submitted that the editor and director would have been intimidated by their arrest and so would refrain from associating with him in future (p.10).
The Attorney General countered that the statements made by Mutambara fell under the provisions which limited the exercise of the right to freedom of expression under the Constitution. Section 20(2)(b)(iii) permitted the limitation of the right for the purpose of “[m]aintaining the authority and independence of the courts or tribunals or the Senate or the House of Assembly”. He said that, in light of the requirements established by Retrofit Ltd v. Posts and Telecommunications  4 LRC 489, section 182(2) was a permissible limitation of the right to freedom of expression and that the provision had as its purpose one of the interests listed in section 20(2)(b) of the Constitution because it was designed to protect the authority and independence of the Courts and that there was a rational connection between the limitation and its objective (p.6). He said that Mutambara’s statements were not “within the limits of reasonable courtesy and good faith” (p.6).
In response to Mutambara’s freedom of association argument, the Attorney General argued that the right to freedom of association is not absolute, and that the purpose of the right is to ensure that “no individual is forced or coerced to associate with any group, organisation or entity [and] to protect an individual in choosing whom he wants to associate with” (p.10).
Gwaunza held that the statement that ZANU-PF was colluding with the ZEC “had political overtones, the like of which one may expect and does in fact hear, from political opponents” (p.7). However, Mutambara’s allegation that the judiciary would be party to this collusion by finding in favour of ZANU-PF and the ZEC if any opposition party challenged their conduct in court was of a different nature. He concluded that “[w]hile the part of the applicant’s statement that cast aspersions on ZEC’s recounting of the votes and alleged ZANU (PF) ‘agenda’ could, for the reasons given, fall within the ambit of a political statement, I am of the view that the same cannot be said of the part that denigrated the judiciary and the High Court” and “I do not doubt that it transcended the ‘political’ arena and became a direct attack on the judiciary” (p.7-8).
Gwaunza also rejected Mutambara’s argument that his comments about the judiciary constituted comment on the proper role of the judiciary. He said the article was primarily about the alleged collusion between ZANU-PF and the ZEC, and there was “nothing in the statement to suggest that it was motivated by, or aimed at contributing to, some unspecified past, current or future debate on the ‘proper’ role of the judiciary” (p8).
Gwaunza therefore held that section 182(1) and Mutambara’s arrest and prosecution did not violate his right to freedom of expression.
Gwaunza then turned to Mutambara’s submission that he had been “denied the right to publish opinions and thoughts to the persons he associated with” (p.10) by arresting and detaining the editor and director of the newspaper. Gwaunza held that section 182(1) was a permissible limitation of Mutambara’s right to freedom of association because the provision “related to publication and communication that undermined public interest in the administration of justice – in other words – communication and publication that amounted to a crime under s 182(1) of the Code, and not any other form of communication” (p.11). He stated that the editor and director were not arrested merely because of their association with Mutambara, but because they had also committed a crime by publishing an article that constituted contempt of court (p.11).
Gwaunza concluded that section 182(1) was a justifiable limitation of the right to freedom of association (p.12).