GWAUNZA JA: This application followed a referral of the
matter to this Court by the Magistrates Court in terms of s 24 (2) of the
former Constitution of Zimbabwe (“the old Constitution”).
The
applicant sought an order declaring s 31 (a) (iii) of the Criminal Law (Codification
and Reform) Act, (Chapter 9:23) (“the
Code,”) and his arrest in terms of that section, to be in violation of the
Constitution, hence null and void. The applicant sought a similar order in
relation to s 182 (1) of the Code, for its alleged violation of s 20 (1) of the
Constitution. At the hearing of this matter, the applicant abandoned the relief
relating to s 31 (a) (iii) of the Code on the basis that the section had already
been struck down as being unconstitutional in the case of Chimakure v Attorney General SC 14/2013. As a result, no reference will be made in this judgment to the
charges preferred against the applicant under this Section.
The
facts of the matter may be summarised as follows. On 20 April 2008, the applicant, who was then
involved in the country's politics and was a leader of an opposition party,
wrote and caused to be published in an independent weekly newspaper, an article
entitled “A shameful betrayal of national
independence.” Jointly with a director and the editor of the newspaper in
question, the applicant was arrested on 1 June 2008 on allegations that they
had contravened s 182 (1) (a) of the Code, in addition
to s 31 (a) (iii) of the same Act. In relation to the former, the applicant was
alleged to have published an article that was contemptuous of the High Court of
Zimbabwe. The offending words in the article were:
“In
terms of the House of Assembly (sic), the agenda is to seize at least nine
seats from the opposition through recounts and court action leading to re-runs.
This explains the 23 recounts ZEC had instituted. There is clearly criminal
collusion between ZEC and ZANU PF. To add insult to injury, this unlikely
marriage is dutifully consummated by a compliant and pliable judiciary typified
and exemplified by Judge Tendai Uchena's
unreasonable and thoughtless decision not to order ZEC to release the
Presidential results.” (my emphasis)
It is the applicant's case that s 182(1),
being unconstitutional, was not a “law” that would justify or constitute a permissible
derogation from ss 20 (1), 21 (1) and 23 (2) of the old Constitution. He
further contends that his prosecution in the Magistrates Court constituted a violation
of his right to equal protection of the law as provided for under s 18 (1) of
that Constitution. The applicant, however, seems to have abandoned this
argument since no reference to it is made in his heads of argument.
He accordingly seeks a
permanent stay of proceedings, alternatively or additionally that s 182 (1) of
the code be declared null and void.
Section 182 (1) of the Code
reads as follows:-
“182
Contempt of court
(1) Any person who, by any 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.”
The
applicant submits that his arrest and prosecution resulted in the infringement
of the following of his rights, guaranteed in terms of the old Constitution;
(i)
freedom of expression (s 20 (1))
(ii)
freedom of association
(s 21 (1))
(iii)
protection from
discrimination (s 23)
I
will consider each of these rights in relation to the charges preferred against
the applicant.
Freedom
of Expression
Freedom
of expression is a right which was protected under s 20 (1) of the old Constitution,
which read as follows:
“Except
with his own consent or by way of parental discipline, 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”.
The
applicant does not deny that he caused the statement in question to be
published. He submits correctly, that there are a number of authorities in our
jurisdiction and beyond that have emphasized the purpose of safeguarding
freedom of expression, the fact that it lies at the very foundation of a
democratic society and that, consequently, it is a right that is jealously
guarded by the courts. (See In re
Munhumeso 1995 (1) SA 551 (ZCC), Woods
and Others v Minister of Justice & Others 1994 (2) ZLR 195 (S), Madzingo
& Others v Minister of Justice & Others 2005 (1) ZLR 171 (S)). In
contending, in his defence, that the statement in issue was one that was
protected under the freedom of expression enshrined in the old Constitution, the
applicant argues that;
(a) the
statement was “undoubtedly” one of a political nature, and therefore fell into
the category of political speech which is ordinarily afforded highest protection
against interference or restriction under the constitutional freedom of
expression provisions;
(b)
since the comment was
directed at the decision of the court, which had some political significance,
any reference to the judiciary bordered on the incidental and therefore could
not have been serious;
(c)
in other jurisdictions,
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;
(d)
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 (S
v Mamabolo 2001 (2) SA 409 CC);
(e)
genuine, albeit 'rigorous' criticism of the judiciary
is acceptable, as long as it stayed within the limits of reasonable courtesy
and good faith
(f)
he should not have been
charged under s 182 (1) since his comment was also 'debate' on the proper role
of the judiciary, that is, whether it is best to have an activist or a
deferential judiciary, and finally, that
(g)
nothing was in any case
established on the facts as set out by the State, which suggests there was any
impairment of the dignity, reputation or authority of the court.
The
first respondent (“the respondent”) challenges all of the applicant's arguments
and submits that there were specific limitations to the right to freedom of
expression provided in s 20 (2) (b) (iii) of the old Constitution. The purpose of
the limitations, it is contended, was to maintain the independence and
authority of the courts. The relevant provision read as follows:-
“20 Protection of Freedom of Expression
(1) ---
(2) Nothing contained in or done under the
authority of any law shall be held to be in contravention of subsection (1) to
the extent that the law in question makes provision-
(a) ---
(b) for the purpose of
(i) ---
(ii) ---
(iii)Maintaining
the authority and independence of the courts or tribunals or the Senate or the
House of Assembly
(iv) ---
(v) ---“
The
respondent contends that, contrary to the applicant's assertions in this
respect, s 182 (1) of the Code complied with each of the requirements of
permissible legislative limitation of the exercise of the right to freedom of
expression. He submits that the questions to be posed in this respect are defined
as follows in the case of Retrofit
(Private) Limited v Posts and Telecommunications and Anor;
Is
the restriction on the exercise of the right of freedom of expression imposed
under s 182(1) of the Criminal Code contained in law?
1)
If yes, does the provision have as its
primary objective the protection of a public interest in one or more of the
matters listed in s 20(2)(a) of the old Constitution?
2)
If the protection of a public interest
listed in s 20(2)(a) is the primary purpose of the legislation, is there a
rational connection between the restriction and the exercise of the right to
freedom of expression and the objective pursued? (in re Chinamasa, (supra); Chimakure and Others vs Attorney General
(supra)
The
respondent then addresses each of these questions in relation to the case at
hand and submits as follows in his Heads of Argument;
“It
is submitted that the restriction is contained in the law because it is
provided for in s 182(1) of the Code. It is further submitted that indeed the
offence of 'contempt of court' (“scandalising
the court”) exists for purposes of protecting the administration of justice
and is thus a permissible derogation from the freedom of expression. It is
submitted, in answer to the last question, that there is a rational connection
between the restriction on the exercise of the right to freedom of expression
and the objective pursued. In other words the offence as provided for in s
182(1) of the Code was (reasonably) justifiable in a democratic society. There
is need to protect the courts from being scandalised”
The
respondent added that the words uttered in reference to the judiciary were clearly
not “within the limits of reasonable courtesy and good faith”.
In
considering the lengthy submissions of the parties on this matter, I find that
there is no dispute as to the content and purpose of the right to the freedom
of expression that was enshrined in the old Constitution. Nor is it disputed
that such right is not absolute. I am, however, persuaded by the respondent's
submissions as outlined above.
A
reading of the offending statement conveys the clear impression that the
applicant's major grievance was the perceived collusion between the political
party ZANU (PF) and the Zimbabwe Electoral Commission ('ZEC'). It appears that
the applicant regarded the vote recount as the result of some pressure having
been brought to bear upon ZEC to undertake the exercise, as part of a ZANU(PF)
'agenda' to 'seize' at least nine Parliamentary seats from the opposition
political parties. Whatever the merits or demerits of this speculative comment,
it is evident that the applicant made his meaning quite clear. The first part
of the statement, in my view, had political overtones, the like of which one may
expect and does in fact hear, from political opponents. The applicant however, did
not stop there. He went on to draw the judiciary generally, and the High Court in
particular, into the perceived conspiracy between ZANU (PF) and ZEC. From
commenting on a factual situation, that is, the vote recounts, he proceeded to
confidently 'predict' what would happen
should any court challenge to the vote recounts be mounted by the
opposition. Using strong language that,
in my view, and as rightly submitted by the respondent, fell outside the limits of 'reasonable
courtesy and good faith', he charged that the judiciary - accused by him of
being 'compliant and pliable'- would dutifully 'consummate' the unlikely
marriage between ZANU(PF) and ZEC. The
applicant, even after this, was not done! In an apparent effort to substantiate
his speculative charges against the judiciary, he went on to cite a real
judgment of the High Court, which he described as “thoughtless,” as an
'example' of the pliability and compliance that he had mentioned earlier in the
statement.
While
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. I
do not doubt that it transcended the 'political' arena and became a direct
attack on the judiciary. I therefore have difficulty in accepting the
applicant's averment that such a statement 'bordered on the incidental' and
could therefore not have been serious. I am in this respect persuaded to the
merit in the following submission contained in the respondent's heads of
argument;
“The
applicant's words about the judiciary not only impute improper and corrupt
motives or conduct on those taking part in the administration of justice, but
also excites misgivings as to the integrity, propriety and impartiality brought
to the exercise of judicial office and such words indeed created a real or
substantial risk of impairing public confidence in the administration of
justice. The submission is also made that the crime committed in terms of s
182(1) of the Code falls in the category known as 'Crimes Against the
Administration of Justice'. The contempt charged was the type ordinarily
referred to as 'scandalising the court”. Such crime is described in In re Chinamasa 2000 - (2) ZLR 322, as
one that is:
'committed
by publication either in writing or verbally of words calculated to bring a
court, a judge or the administration of justice through the courts generally,
into contempt'”
As
already indicated, the applicant also sought to defend his utterances against
the judiciary on the basis that they
constituted 'comment' on the debate focussed on the 'proper role' of the
judiciary. I do not find this rather ingenious submission to be persuasive. I
have already commented that the applicant's bone of contention was the
perceived collusion between ZANU(PF) and ZEC to further the former's 'agenda'
of seizing some parliamentary seats from the opposition. This grievance was,
evidently, what motivated his denigrating comments on the judiciary. There is
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.
I
therefore dismiss this argument to the extent that it was meant to justify the
denigration of the judiciary on the basis of the statement being 'incidental”
and therefore not seriously meant.
I
am satisfied, however, that the statement falls into the category of 'acts' contemplated
by s 182(1) of the Code. To the extent that this section had not been repealed
or otherwise struck off the statute books, it was clearly 'a law' which, in
terms of s 20 (2)(ii) of the former Constitution, had the objective of
'maintaining independence and authority of the courts.' Words like 'pliable'
and 'compliant' connote the very opposite of judicial independence and
authority.
The
applicant bore the onus to prove his
case, and it was incumbent upon him to discharge it. This point was reiterated in
the Retrofit case (supra) thus;
“From
a procedural aspect, the onus is on the challenger to establish that the enactment
under attack goes further than is reasonably justifiable in a democratic
society and not on the State to show that it does not”
Applied to the circumstances of
this case, I do not find that the applicant has discharged the onus that he bore, to establish that s 182
(1) should be struck down because it violated his right to freedom of
expression in the manner that he alleges.
2. Freedom of association
Section
21 of the old Constitution protected the right to freedom of association in the
following terms:
“(1) Except with his own consent or by way of
parental discipline, no person shall be hindered in his freedom of assembly and
association, that is to say, his right to assemble freely and associate with
other persons and in particular to form or belong to political parties or trade
unions or other associations for the protection of his interests.”
The
applicant contends that he was denied the right to publish opinions and
thoughts to the persons he associated with. This assertion is premised on the
fact that the editor of the newspaper that published his article and a director
of the company owning the newspaper were jointly arrested with and faced the
same charges as him. He further argues that since these were the people he
associated with for purposes of airing out his views, their arrest and
detention amounted to an interference with his freedom of association. This was
because the arrests instilled so much fear in them that they might not wish to
associate further with him.
The
respondent in response, argues correctly that the right to freedom of
association was not absolute, given that there were permissible derogations
in terms of s 21 (3) of the old Constitution, which read as follows:-
“(3)
Nothing contained or done under
the authority of any law shall be held to be in contravention of subsection (1)
to the extent that the law in question makes provision –
(a)
in the interests of defence, public
safety, public order, public morality or public health;
(b)
for the purpose of protecting the
rights or freedom of other persons;
(c)
for the registration of companies,
partnerships, societies or other associations of persons, other than political
parties, trade unions, or employers' organisations; or
(d)
that imposes restrictions upon public
officers.
except
in so far as that provision or, as the case maybe, the thing done under the
authority thereof is shown not to be reasonably justifiable in a democratic
society.” (my emphasis)
The
respondent argues that the reason behind the right to freedom of association is
to ensure that no individual is forced or coerced to associate with any group,
organisation or entity. It is also meant to protect an individual in choosing
whom he wants to associate with. In this particular case the question of the
applicant being forced or coerced to associate with the editor and the company
that owned the newspaper which published his article does not arise. His right to freely associate with the newspaper
and editor in question was in my view properly 'limited' by s 182 (1). That
limitation, as the respondent correctly contends, 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.
It
hardly needs mention that no one is above the law. It was not because of their 'association'
with the appellant, nor in order to discourage any such future 'association' that
the newspaper and its editor were arrested and charged. They were arrested
because they were suspected of having jointly committed a crime with him. The
crime in question was created in a law that was properly passed in
the interests of
public order and for the purpose of protecting the
rights or freedom of other persons, a law that, in effect, constituted an
acceptable derogation from the right to freedom of association, as provided in
s 21 (3) of the old Constitution. It goes without saying, that as long as one
associates with others for purposes that do not constitute a violation of the
law, one need not fear any arrest.
A
pertinent consideration with respect to the enjoyment of fundamental rights and
freedoms is the imperative for one to exercise his/her rights to such freedoms
in a manner that does not injure or undermine the rights of others. Judges
generally are not able to defend themselves against publication of statements
like the one in casu, whose effect is
to undermine public confidence in, and the authority of, the courts and the
judiciary in general. This type of effect is not one that would manifest itself
in easily measurable terms, and therefore in my view does not lend itself to
the kind of 'proof' that the applicant argues should have been
demonstrated. This, however, does not detract
from the seriousness of the offence.
I
am satisfied, in the result, that the limitation to freedom of association that
is imposed by s 182(1) of the Code, is reasonably justifiable in a democratic
society, is an acceptable derogation from the right to freedom of association
and is not excessive or arbitrary in relation to the objective to be attained
by virtue of the limitation.
Accordingly, I find that the arrest of the
applicant, which was effected under the impugned law, did not translate into a
violation of the applicant's right to freedom of association.
Freedom from discrimination
Section
23 of the old Constitution provided for protection against discrimination as
follows:-
“23 Protection from discrimination on the grounds of
race.
(1)
Subject to the provisions of this
section
(a)
no law shall make any provision that is discriminatory
either in itself or in its effect; and
(b)
no person shall be treated in a
discriminatory manner by any person acting by virtue of any written law, or in
the performance of the function of any public office or public authority
(2)
For the purposes of subsection (1), a
law shall be regarded as making a provision that is discriminatory and a person
shall be regarded as having been treated in a discriminatory manner if, as a
result of that law or treatment, persons of a particular description by race, tribe,
place of origin, political opinions, colour, creed , sex gender, marital status
or physical disability are prejudiced-
(a)
by being subjected to a condition,
restriction or disability to which others of another such description are not
made subject to.
(b)
by the according to persons of another
such description of a privilege or advantage which is not accorded to persons
of the first mentioned description ---“
The applicant's submissions in relation to the
discrimination that he alleged are in my view woefully short on detail and
substance. He charges that 'the public authority', by arresting and charging
him while
acting by virtue of a written law, (s 182(1)), treated him in a discriminatory
manner. This was because, he averred, no
such charges were brought against the incumbent presidential candidate who, in
2005, made some relatively 'tough' but similar comments on a member of the
judiciary. He further argues that such selective treatment of members of the
public constituted a violation of one's right to freedom from discrimination.
The applicant evidently relies for these contentions
on the provisions of s 23(1)(b) of the old Constitution. Although this could be
implied from the wording of part of the relief that he seeks, the applicant offered
no further elaboration, nor has he specifically alleged, that s 182(1) of the
Code was discriminatory either in itself, or in its effect. He alleges,
instead, that the public authority, by arresting and prosecuting him while
acting in terms of this provision - a written law – and in the performance of
their public office, had treated him in a discriminatory manner, as already
indicated.
I find these submissions to be flawed in two major
respects, and therefore devoid of any merit.
Firstly, one cannot hope to escape arrest for
committing a crime, on the basis that such arrest would violate his
constitutionally guaranteed right to protection against discrimination, because
another person who may have committed the same crime was not similarly
arrested. In my view this would be to
misconstrue the import of both the old Constitution and s 23 thereof. A reading
of the Preamble to the Declaration of Rights in the old Constitution made this
clear. On the one hand, it stressed the
entitlement of every person in Zimbabwe to the fundamental rights and freedoms
of individuals specified in the Declaration. On the other, it highlighted the
fact that it was the duty of every person to 'respect and abide by the
Constitution and the laws of Zimbabwe
….' (my emphasis) My reading of these
provisions suggests that while one was entitled to the fundamental rights and
freedoms guaranteed under the Constitution, such entitlement did not absolve
one of the duty to respect and abide by the law.
Applied to the circumstances of this case, the
applicant had a duty to respect the law that outlawed the conduct with which he
was charged. It was because of this
perceived breach of the law that he was arrested and charged. He would escape
the consequences of his conduct only if a court absolved him of all guilt, and
not because of any notion of discrimination arising out of the fact that another
person who might have engaged in similar conduct was not likewise charged with
the same offence. Clearly, this would not be a defence to the charge, since every
person must face the consequences of his or her own actions. A constitution, by its nature, is not likely
to offer immunity to people who violate the law.
Secondly and more to the point, however, is the fact
that the applicant, by his own admission, accepts that the 'íncumbent' presidential
candidate concerned was, at the time he allegedly made the utterances, the President
of the country. As correctly submitted for the respondent, the President was,
as such, immune from prosecution. Section 30(1) of the old Constitution read as
follows:
“30
Presidential immunity
(1) The
President shall not, while in office, be personally liable to any civil or
criminal proceedings whatsoever in any court”
It is evident in the light of this provision that
the applicant cannot validly claim to have been treated in a discriminatory
manner, when the 'other person' whom he claims should have been penalised the
same way was, by operation of law, immune from such treatment.
When all is told I find that the applicant's claim
lacks merit in all respects, and ought to be dismissed.
It
is accordingly ordered as follows;
'The application be and is hereby dismissed'.
CHIDYAUSIKU CJ I agree
MALABA DCJ I agree
ZIYAMBI JCC I
agree
GARWE JCC I agree
GOWORA JCC I agree
HLATSHWAYO JCC I agree
GUVAVA JCC I agree
MAVANGIRA AJCC I
agree
Messrs Mtetwa and
Nyambirai, Applicant's Legal practitioners
National Prosecuting
Authority, First respondent's legal practitioners.
