On Thursday, June 17 Zimbabwe’s Constitutional Court struck a major blow to the autocratic rule of Robert Mugabe and his three and a half decades of crushing dissent. The Court ruled unanimously that the sub-Saharan country’s infamous criminal defamation laws were not in line with its 2013 Constitution.
Further, the Court stated that such laws were “not reasonably justifiable in a democratic society.” This decision has been welcomed by the country’s journalists, international human rights organizations and constitutional law advocates alike, with the Media Institute of Southern Africa heralding the ruling as a “significant milestone,” the African Federation of Journalists calling it a “strong step towards democracy” with many others similarly weighting in.
While at their heart criminal defamation laws make untrue, damaging speech a criminal act, in order to understand the ruling’s true significance, it is first necessary to understand the horrible history of criminal defamation laws in Zimbabwe and throughout sub-Saharan Africa.
First, it is important to note that the efficacy of criminal defamation laws does not lay in convictions. It lays in the ability to threaten journalists and dissenting voices with injunctions or years of costly litigation in order to dissuade a free press.
While it may be unlikely that there will be significant legal sanctions (according to Zimbabwean newspaper The Herald, there has been only one successful criminal defamation prosecution in the law’s nearly 124 years of history) the threat of litigation and penalty is enough to keep most from delving further into stories or reporting.
Thus the mere threat of punishment prevents an active and free press. The presence of such laws on the books, even with null or lax enforcement, has been a consistent weapon of despots throughout the globe.
In documenting the horrific history of criminal defamation in Zimbabwe one need not look any further than the case appealed to the Constitutional Court. The Herald detailed the case, which centered around Munyaradzi Kereke, a former advisor to the Central Bank and a member of Mugabe’s Zimbabwe African National Union-Patriotic Front.
In addition to his history in government work, Kereke operated a medical aid firm, Green Card. When it was reported in a Zimbabwean newspaper, The Standard, that the firm was on the brink of collapse, Kereke filed a criminal complaint alleging defamation. The two Zimbabwean citizens who were charged were editor Nevanji Madanhire and reporter Nqaba Matshazi.
For what it’s worth, according to the Zimbabwean Financial Gazette, the firm would eventually collapse under the weight of unpaid debts and obligations.
In addition to the attempt to dissuade journalists from reporting on private business dealings of a politician, criminal defamation laws have been used to punish legitimate policy disagreements and dissent against the ruling party and Robert Mugabe.
It is with this history in mind that international organizations have near-uniformly called for the abolition of such laws.
The African Commission on Human and People’s Rights passed a resolution on repealing such laws in 2010, where the group called “on States Parties 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;” and “on States Parties to refrain from imposing general restrictions that are in violation of the right to freedom of expression.”
The institutional rejection of criminal defamation laws extends to organizations beyond the continent. In a joint statement by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, the group declared “Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.”
The Constitutional Court has not yet given the final word on the matter. The unanimous decision gives the government an additional opportunity to defend the law. Whether or not the ZANU-PF chooses to exercise this option is yet to be seen.
We do not yet know whether or not the Zimbabwean government will further defend the law or even abide by the ruling, but the Constitutional Court declaring that such despotic laws are not in line with the country’s new constitution is a significant step for the rule of law.
Not only has the Constitutional Court told Mugabe and the rest of his government that they cannot use such tyrannical laws to intimidate and dissuade journalism and opposition politics, but the Court has also overruled government policy, naming itself as the clear arbiter of constitutionality under the new Constitution. If the government abides by the Constitutional Court’s ruling, this will be a significant step on from years of Mugabe-centric politics and a lack of judicial independence in Zimbabwe.
Andrew Friedman is a human rights attorney and consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.
