CRIMINAL DEFAMATION
Our law of criminal defamation is essentially an amalgam of
Roman-Dutch and English Law. The original rationale of the crime of defamation
under Roman and Roman-Dutch law is not readily ascertainable. According to JOLOWICZ:
An Introduction to Roman Law (3rd ed.)…, its rationale may derive from the
social insecurity of the patricians who became increasingly threatened by the
mounting power of the plebeians. In 17th and 18th century Holland, the Groot
Placaat Boek abounds with enactments on the subject. The reason for such
repeated re-statements of the offence seems to have been the prevalence of
defamatory lampoons, squibs, verses and scurrilous satires, pertaining in particular
to persons in authority. See Rex v Harrison and Dryburgh 1922 AD 320…,.
In Zimbabwe, the offence of
criminal defamation and its parameters are prescribed in section 96 of the Criminal Law Code as follows:
“(1) Any person who, intending to harm the reputation of another
person, publishes a statement which –
(a) When he or she published
it, he or she knew was false in a material particular or realised that there was a real risk or possibility that it might be false in a material particular; and
(b) Causes
serious harm to the reputation of that other person or creates a real risk or possibility of causing serious harm to that other person's reputation;
shall be guilty of criminal defamation and liable to a fine
up to or exceeding level fourteen or imprisonment
for a period not exceeding two years or both.
(2) In deciding
whether the publication of a statement
has caused harm to a person's
reputation that is sufficiently
serious to constitute the crime of criminal
defamation, a court shall take into account the following factors in addition to any others that are
relevant to the particular case –
(a) The extent to which the accused has persisted with the
allegations made in the statement;
(b) The extravagance of any
allegations made in the statement;
(c) The nature and extent of
publication of the statement;
(d) Whether and to what extent the interests of the State or any community have been
detrimentally affected by the publication.
(3) Subject to subsection (4), a person accused of criminal defamation arising out of the publication of a statement shall be entitled
to avail himself or herself of
any defence that would be available
to him or her in civil
proceedings for defamation arising out of the
same publication of the same statement.
(4) If it is proved,
in a prosecution for criminal
defamation that the defamatory statement was made known to any person, it shall
be presumed, unless the contrary is proved, that the person understood its
defamatory significance.”…,.
FREEDOM OF EXPRESSION
There can be no doubt
that the freedom of expression,
coupled with the corollary right to receive and impart information, is a core
value of any democratic society
deserving of the utmost legal
protection. As such, it is prominently
recognised and entrenched in virtually
every international and regional human rights instrument. Indeed, at its first
session in 1946, through Resolution
59(I) of 14 December 1946, calling for
an international conference on freedom
of information, the United Nations
General Assembly declared that:
“Freedom of information
is a fundamental human right and is the touchstone of all the freedoms to which
the United Nations is consecrated.”
This sentiment is echoed, with specific reference to the
media, by the Human Rights Committee (established under Part IV of the
International Covenant on Civil and Political Rights 1976). In General Comment
No.34, issued at its 102nd session in July 2011, the Committee observed as
follows…,:
“A free, uncensored and unhindered press or other media is essential in any society to
ensure freedom of opinion and
expression and the enjoyment of other
Covenant rights. It constitutes one of the
cornerstones of a democratic society.
The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free
communication of information and ideas
about public and political issues between citizens, candidates and elected
representatives is essential. This implies a free press and other media able to comment on
public issues without censorship or restraint
and to inform public opinion. The
public also has a corresponding right to receive media output.”
This Court too has had occasion to recognise the freedom of expression
as a core value of a free and
democratic society. See Retrofit (Pvt) Ltd v Posts and Telecommunications
Corporation & Another 1995 (2)
ZLR 199 (S)…,; United Parties v Minister of Justice Legal & Parliamentary
Affairs 1997 (2) ZLR 254 (S)…,.
More recently, the South African
Supreme Court of Appeal made the
following pronouncement per STREICHER
JA, in the case of Hoho v The State [2008] ZASCA 98…,:
“The importance of the
right to freedom of expression has
often been stressed by our courts. Suppression of available information and of ideas
can only be detrimental to the
decision-making process of individuals,
corporations and Governments. It may lead to the
wrong government being elected, the wrong policies being adopted, the wrong
people being appointed, corruption, dishonesty and incompetence not being exposed, wrong investments being
made and a multitude of other
undesirable consequences. It is for
this reason that it has been said
'that freedom of expression
constitutes one of the essential
foundations of a democratic society
and is one of the basic conditions for its progress and the development of man'.”
It certainly cannot be gainsaid
that the offence of criminal
defamation operates to encumber and restrict the freedom of expression enshrined in section 20(1) of the former Constitution. On the other hand, it is also
not in doubt that the offence of criminal defamation falls into the category
of permissible derogations contemplated in section
20(2)(b)(i), as being a provision designed to
protect the reputations, rights and freedoms of other persons.
What is in issue for determination by this Court is whether or not it is a limitation that is reasonably justifiable in a democratic society?
The test as to what is democratically
reasonable and justifiable is not
susceptible to precise legal formulation. In
my own appreciation, the test
may well vary from one society to another
depending upon its peculiar political organisation and socio-economic
underpinnings. Nevertheless, as was recognised by GUBBAY CJ in the oft-cited In re Munhumeso &
Others 1994 (1) ZLR 49 (S)…,:
“What is reasonably
justifiable in a democratic society is an illusive concept – one which cannot be precisely defined by the courts. There is no legal yardstick save that the
quality of reasonableness of the provision under challenge is to be judged according to whether it
arbitrarily or excessively
invades the enjoyment of a
constitutionally guaranteed right.”
In Nyambirai v National Social Security Authority &
Another 1995 (2) ZLR 1 (S)…, GUBBAY
CJ elaborated the test as follows:
“In effect, the court will consider three criteria in determining whether or not the limitation is permissible in the sense of not being shown to be arbitrary or excessive. It will ask itself whether:
(i) The legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) The measures designed to meet the legislative object are rationally connected to it; and
(iii) The means used to impair the right or freedom are no more than is necessary
to accomplish the objective.”
As regards the first two rungs of this test, I do not
perceive any conceptual or practical
impediment to the criminalisation of defamation.
The objective behind section 96 of the
Criminal Law Code, viz. to protect
the reputations, rights and freedoms of other
persons, is sufficiently important
to warrant the limitation of freedom of expression, and the detailed provisions of section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
are, clearly, rationally connected to that objective. What is contentious, in my view, is the
proportionality of the means deployed in this instance. In other words, is it necessary to criminalise defamatory statements in order to accomplish what is
otherwise an unquestionably legitimate objective? It seems logical to answer this question in two stages:
(i) Firstly, what are the consequences of criminalising defamation? and
(ii) Secondly, is there
an appropriate and satisfactory alternative remedy to deal with the mischief of defamation?
The practical consequences that would ordinarily flow from
a complaint of criminal defamation are
as follows. The accused person would be investigated
and face the danger of arrest. This
would arise even where the alleged defamation is
not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigours and
ordeal of a criminal trial. Even if the accused is eventually acquitted, he may
well have undergone the traumatising gamut of
arrest, detention, remand and trial. Moreover, assuming that the accused
has employed the services of a lawyer,
he will also have incurred a
sizeable bill of costs which will normally not be recoverable.
I would accept that the foregoing tribulations are not
peculiar to the offence of criminal
defamation and would potentially be encountered by an accused person charged
with any serious criminal offence. However, what is distinctive about criminal defamation, though not confined to that offence, is the stifling or chilling
effect of its very existence on the right to speak and the right to know.
This, in my view, is the more deleterious consequence of its retention in the Criminal Law Code, particularly in the present context of newspaper reportage.
It cannot be denied
that newspapers play a vital role in disseminating
information in every society,
whether open or otherwise. Part and
parcel of that role is to unearth corrupt or fraudulent activities,
executive and corporate excesses, and other wrongdoings that impinge upon the
rights and interests of ordinary
citizens. It is inconceivable that a
newspaper could perform its investigative and informative functions without
defaming one person or another. The
overhanging effect of the offence of criminal defamation is to stifle
and silence the free flow of information
in the public domain. This, in turn, may result in the citizenry remaining un-informed
about matters of public significance
and the unquestioned and unchecked continuation of unconscionable malpractices.
The chilling effect of criminalising
defamation is further exacerbated by
the maximum punishment of two years
imprisonment imposable for any contravention of
section 96 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. This penalty, in my view, is clearly excessive and patently disproportionate for the
purpose of suppressing objectionable or opprobrious statements. The
accomplishment of that objective
certainly cannot countenance the spectre of imprisonment
as a measure that is reasonably
justifiable in a democratic society.
The fact that investigative journalism may on occasion involve the publication of erroneous or inaccurate information does not detract from the reciprocal
rights to receive and impart
information and ideas without interference. As was aptly observed in Hoho v The State [2008] ZASCA 98…,:
“Although false information will not benefit a society,
democratic or otherwise, the right to
freedom of expression is not restricted to correct or truthful
information because errors are bound to be made
from time to time and to suppress the publication of erroneous statements on pain
of penalty would of necessity have a stifling effect on the free flow of information.”
Another very compelling reason for eschewing resort to
criminal defamation is the availability of an
alternative civil remedy under the actio injuriandum in the form of damages for defamation. Although this
remedy may not be as expeditious as
criminal prosecution, it affords
ample compensatory redress for injury to one's
reputation. If this is correct, the invocation of criminal defamation to protect one's
reputation would be unnecessary, disproportionate and therefore excessive.
One of the
arguments proffered for the retention of criminal
defamation is that injury to one's reputation may have more serious
and lasting effects than a physical assault and that, as is the case with assault, there is nothing excessive about one injury
attracting both a civil claim and a criminal penalty. See Hoho v The State [2008] ZASCA 98..,.
However, what this argument disregards is that an
act of assault or malicious damage to property, unlike defamation, impinges upon the very fabric of society, i.e. by threatening the manner in which
citizens are expected to interact in their
daily lives without fear of physical
violence. In the case of defamation,
only the individual rights of the
complainant are affected, and he has
a clear alternative remedy in civil
law, without subjecting the defamer to the distress attendant upon criminal
arrest and detention.
In Hoho v The State [2008]
ZASCA 98, the Supreme Court of Appeal
dealt with the constitutionality of a
conviction for criminal defamation. The court deemed civil and criminal
liability for defamation to be equivalent in the extent of their
limitation, as the onerous consequences of criminal
liability are counterbalanced by an onerous burden of proof. It was accordingly held, at para.36, that criminal defamation
was not abrogated
by disuse and was perfectly consonant with the new South African Constitution. The offence was
reasonably required to protect
personal reputations and did not go further
than was necessary to accomplish that
objective. It was not too drastic a limitation on the right to freedom of association.
In an article written by VINAYAK BHARDWAJ and BEN WINKS, in the Mail & Guardian of 1
to 7 November 2013, commenting on the
decision in Hoho v The State [2008] ZASCA 98, the vital differences
between criminal and civil liability are commendably highlighted. I take the
liberty to quote extensively from this
article and to associate myself with
the propositions articulated therein:
“Civil law exists to provide relief and restitution when
one person harms or threatens to harm
another's private interests. Criminal law exists to ensure retribution and
protection of the public, by detaining
offenders and deterring others from offending.
For assault, imposing imprisonment or supervision is essential
to protect the victims and the public
at large. For damaging speech, however, the civil law is as effective, if not more so, in providing the public with proportionate protection from offenders.
Crucially, freedom of expression
is constitutionally enshrined and
encouraged, as the lifeblood of democracy.
The freedom to wield fists and firearms enjoys no similar status in our
supreme law. Thus, the analogy between assault and defamation breaks down. It is an unreliable guide to finding an appropriate balance between
the rights to dignity and free speech.
It is also
disputable that civil and criminal defamation impose equivalent limitations,
and that the harsher consequences of criminal
liability are neatly offset by the heavier burden of proof. There are important differences in practice and in principle.
First, a prosecution targets the journalist rather than the journal. A civil
suit is aimed primarily at the
defendant with the deepest pockets.
Furthermore, while civil liability may be discharged within days, through payment
or some other performance, criminal
liability endures long after the sentence has been served, or even if the sentence has been suspended.
Criminal liability is permanent and
pervasive. It brands the accused with a mark so deep and indelible, it can be
expunged only by Presidential pardon. It stains every sphere of that person's life. He becomes a
criminal, and must disclose that every time he applies for a job, a visa or even a bank account.
Even if the State
does not discharge its onerous burden of proof,
the very existence of the crime
creates the risk of wrongful
accusation, investigation, prosecution and even conviction, with all the
associated inconvenience and scandal. These ills
can barely be corrected on appeal,
and thus the crime could easily be used
to cow courageous journalists.
It is this brand
of public disapproval that criminal
law rightly casts on murderers,
rapists, and thieves, precisely for its deterrent potency. The same objective
could not, and should not, apply to injurious
speech, the borders of which are
elusive and essentially subjective.”…,.
CONCLUSION
Having regard to all
of the foregoing, I take the view that
the harmful and undesirable consequences of criminalising
defamation, viz. the chilling
possibilities of arrest, detention and
two years imprisonment, are manifestly excessive in their effect. Moreover, there is an appropriate and satisfactory alternative civil remedy that
is available to combat the mischief of defamation.
Put differently, the offence of criminal
defamation constitutes a disproportionate instrument for achieving the intended
objective of protecting the
reputations, rights and freedoms of other
persons. In short, it is not necessary to criminalise defamatory statements.
Consequently, I am satisfied that the offence is not reasonably justifiable in a democratic society within the
contemplation of section 20(2) of the former Constitution.
Accordingly, it is inconsistent with the freedom of expression guaranteed by section 20(1) of that
Constitution.
FREEDOM OF
EXPRESSION UNDER THE NEW CONSTITUTION
As I have observed at the outset, the principal issue for
determination in casu is the constitutionality of criminal defamation under the former
Constitution. What has not, and need not, be
considered for present purposes is the
validity of that offence within the
framework of the new Constitution.
What I would simply note at
this stage is that the
freedom of expression and freedom of the media, as secured by section 61 of that Constitution are framed differently in several material respects. Of
particular significance is subsection
(5)(c) which expressly excludes malicious injury to a person's reputation or dignity
from the ambit of the freedom of expression and freedom of the media guaranteed by subsections (1)
and (2). Also relevant is section 51
which declares that every person has inherent dignity and the right to have that dignity respected and protected.
Having regard to these
provisions, taken together, it is arguable
that the freedom of expression
conferred by section 61 is to be more
narrowly construed as being subordinate to the value of human dignity. It might also be
argued that the offence of criminal
defamation is a justifiable
limitation on the freedom of expression as envisaged by section 86 of the new Constitution. In any event, as I
have said, these are matters for argument and consideration as and when an
appropriate case is brought for
determination before this Court.
DISPOSITION
The relief sought herein is
for the permanent stay of prosecution
of the applicants on the charge of criminal defamation brought against them as being in contravention of section 20(1) of the
former Constitution.
They have succeeded in demonstrating
that the offence of criminal
defamation is not reasonably
justifiable in a democratic society on any of the
grounds mentioned in section 20(2) of the Constitution. However, before the
declaratory relief that they seek can be granted,
it is necessary to apply the rule nisi requirements of section
24(5) of that Constitution, which
subsection provides as follows:
“If in any
proceedings it is alleged that anything contained in or done
under the authority of any law is in contravention of section 16, 17, 19, 20, 21 or 22 and the court decides, as a result of hearing the parties, that the complainant
has shown that the court should not accept that the provision of the law
concerned is reasonably
justifiable in a democratic society on such of
the grounds mentioned in section 16(7), 17(2), 19(5), 20(2) and (4),
21(3) or 22(3)(a) to (e), as the case may be, as are relied upon by the other
party without proof to its satisfaction, it
shall issue a rule nisi calling
upon the responsible Minister to show cause why that provision should not be declared to be in contravention of the
section concerned.”
In the result, the Minister of Justice, Legal and Parliamentary Affairs is hereby called upon, if he so wishes, to show cause why section 96 of the Criminal
Law (Codification and Reform)
Act [Chapter 9:23] should not be declared
to be in contravention of section 20(1) of the former Constitution. The Registrar is directed to set the matter down for hearing on the earliest available date.
In considering his position in light of this
judgment, the Minister's attention is drawn
to the observations made by this Court in Chimakure
& Others v Attorney-General of Zimbabwe
case no.CCZ 247/09 as to what is ordinarily
expected in any Executive response to a rule nisi issued in terms of section 24(5).
Thus, if the
Minister intends to oppose the
confirmation of the rule nisi, he is enjoined to canvass new facts and legal arguments rather than recapitulate
those that have already been traversed,
and, in keeping with the intention
behind section 24(5), to focus his submissions on the critical question of whether
or not the impugned provision is reasonably justifiable in a democratic society.
