PATEL JA:
On 12 June 2014, in Judgement No. CCZ 2/14, this Court held that s 96 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] was
inconsistent with the freedom of expression guaranteed by s 20(1) of the former
Constitution. Furthermore, the Court found that the applicants had discharged
the onus of showing that the impugned provision was not reasonably justifiable
in a democratic society within the contemplation of s 20(2) of the
Constitution.
Consequently, in accordance
with s 24(5) of that Constitution, the Court issued a rule nisi calling
upon the Minister of Justice, Legal and Parliamentary Affairs (the Minister) to
show cause why s 96 of the Criminal Law Code should not be declared to be in
contravention of s 20(1) of the Constitution.
On 21 July 2014, the Minister duly filed his responding affidavit. He averred
that he had no cause to oppose the intended declaration and that the Court
should proceed to finalise the matter as it deemed fit. On the return day, Adv.
Machaya, appearing for the Minister, reiterated the position taken in
the responding affidavit and consented to the confirmation of the rule nisi.
At the close of submissions by counsel, the Court confirmed the rule nisi.
We further indicated that an appropriate declaratory order would be issued in
due course.
In the result:
- It is declared that s 96 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] is inconsistent with
and in contravention of s 20(1) of the former Constitution.
- It is ordered that the prosecution of the applicants in
respect of the charge of criminal defamation, being Count 2 in the
proceedings under CRB No. 8020-21/11, be permanently stayed.
- There shall be no order as to costs.
CHIDYAUSIKU
CJ: I
agree.
MALABA DCJ:
I
agree.
ZIYAMBI
JA:
I
agree.
GWAUNZA JA:
I agree.
GARWE JA:
I agree.
GOWORA JA:
I agree.
HLATSHWAYO JA:
I agree.
GUVAVA
JA:
I agree.
Atherstone & Cook, applicant's legal practitioners
Civil Division of the Attorney-General's Office, respondent's legal practitioners
