Since set up under new constitution,ConCourt has been very busy.Critics argue that most judgements have favoured the status quo
ADVOCATE Eric Morris yesterday told the Constitutional Court (Concourt) that the criminal defamation law has no place in a democratic society as it hinders journalists from doing their work.
Morris is representing Standard newspaper editor Nevanji Madanhire and former reporter Patience Nyangove in a criminal defamation case involving police chief superintendent Chrispen Makedenge.
The two were arrested two years ago following publication of a story carried in the weekly Standard issue of June 26-July 2 2011, entitled MDC-T fears for missing Timba.
Through Morris, the journalists approached the Concourt challenging Section 96 of the Criminal Law (Codification and Reform) Act under which they are being charged.
The lawyer said such laws gave enormous powers to wrongdoers who seek protection from the State to stifle the media.
According to the State, Madanhire and Nyangove are being charged for authoring an article that referred to the top cop as “notorious”, a term which Makedenge alleged was defamatory to him.
In their appeal, Madanhire and Nyangove argued that the section is ultra vires the old Constitution.
“This is an application for this court to stop the prosecution of my clients on the grounds that the law was at the time of prosecution unconstitutional,” he said.
“I submit that your lordships can make an order in terms of this application that at the time of prosecution criminal defamation was ultra vires the law.”
Morris further cited other democratic societies that had abandoned criminal defamation as it amounted to an infringement on constitutional rights of individuals to freedom of expression.
“Prior to this current application there was a huge rush on effecting arrest on journalists and right now the Attorney-General (AG)’s Office has stopped waiting for this court’s decision,” Morris said.
“Criminal defamation is now being used to serve all purposes for which it was not intended.
“Is the moral fabric of the State threatened when one calls a police officer ‘notorious’?
“Journalists need to go on a course to uncover genuine corruption and if such laws are maintained, investigative journalism would be totally stifled.”
Chief Justice Godfrey Chidyausiku indicated that the court would make a determination after considering both the new and old constitutions to establish whether at the time of the journalists’ arrest the law was not flouted.
However, the judge pointed out that according to the current Constitution it was clear that it provides for protection of individuals’ integrity and criminalises defamation of any person.
Responding to the application, AG’s representative Edmore Makoto who was assisted by Tapiwa Mapfuwa, argued that the criminal defamation laws were meant to protect the poor members of society who could not afford to protect themselves.
“In our democratic society the majority of people are poor and cannot afford to institute civil proceedings against perpetrators of criminal defamation,” Makoto said.
Chief Justice Chidyausiku asked Makoto to explain what was acceptable in a “democratic society”, which would require one to pursue criminal defamation in a situation where there was already a civil remedy.