MRM Law Report

Government Should Not Resort to

Criminal Prosecution Over Media Criticism

In the Supreme Court of Zimbabwe Holden at Harare Judgment delivered by their lordships Gubbay CJ, Mcnally JA, Ebrahim JA, Muchechetere JA and Sandura JA on March 20 and May 22, 2000 in Judgment No. S.C. 36/2000, Civil Application No. 156/99

Between:

(1) Mark Gova Chavunduka )

(2) Raymond Morgan Choto ) Applicants

And:

(1) Minister Of Home Affairs )

(2) The Attorney-General ) Respondents

Held:

* Mere content, no matter how offensive, save where the expression is communicated in a physically violent form, cannot be determinative of whether a statement qualifies for the constitutional protection afforded to freedom of expression.

* The objective of a legislation aimed at punishing false news is not of "pressing and substantial concern" in a democratic society, and is of insufficient importance to justify overriding the constitutional guarantee of freedom of expression.

* The dominant position which Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.

Facts:

On January 10, 1999 The Standard, a weekly newspaper of Harare, published as its lead, a story entitled "Senior Army Officers Arrested", concerning a coup attempt in which 23 members of the Zimbabwe National Army were alleged to have been arrested. Mismanagement of the economy and involvement in the war in the Democratic Republic of the Congo were given as reasons for the failed uprising. The article also noted general dissatisfaction within the Army over the war, claiming morale was low, and that in defiance of orders, some soldiers had refused to participate in the Congo conflict.

Two days later, the first applicant, who is the editor of The Standard, was arrested. On January 19, 1999 the second applicant, the newspaper’s most senior reporter and the author of the article, surrendered himself to the police, as he was being sought.

The two applicants were remanded in the magistrate’s court on a charge of contravening section 50(2)(a) of the Law and Order (Maintenance) Act [Chapter 11:07] ("the Act"). It was alleged that the newspaper had published a false statement likely to cause fear, alarm or despondency among the public or a section of the public. The applicants were granted bail pending trial.

On July 2, 1999, the applicants applied to the Supreme Court of Zimbabwe in terms of section 24(1) of the Constitution of Zimbabwe for an order declaring section 50(2)(a) of the Act to be in contravention of sections 20(1) and 18(2) of the Constitution, which guarantee freedom of expression and the right to a fair trial, and, therefore, of no force and effect.

Relevant Enactments:

Section 50 of the Act provides:

"(1) In this section –

‘statement’ includes any writing, printing, picture, painting, drawing or other similar representation.

(2) Any person who makes, publishes or reproduces any false statement, rumour or report which –

(a) is likely to cause fear, alarm or despondency among the public or any section of the public; or

(b) is likely to disturb the public peace;

shall be guilty of an offence and liable to imprisonment for a period not exceeding seven years, unless he satisfies the court that before making, publishing or reproducing, as the case may be, the statement, rumour or report he took reasonable measures to verify the accuracy thereof."

Section 20(1) of the Constitution protects the freedom of expression in the following terms:

"(1) 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."

Subsections 18 (1) and (2) of the Constitution stipulate that:

"(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.

(2) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

Determination of Issues:

Is a publication such as that at issue, expression protected by section 20(1) of the constitution? if so, is the purpose or effect of section 50(2)(a) of the act to restrict such expression?

Chief Justice Gubbay said he did not understand counsel for the respondents to dispute that the answer to each question should be in the affirmative.

He noted that the Court had previously held that section 20(1) of the Constitution is to be given a benevolent and purposive interpretation and had repeatedly declared the importance of freedom of expression to the Zimbabwean democracy, and referred to one of the most recent judgments: United Parties v Minister of Justice, Legal and Parliamentary Affairs & Ors 1997 (2) ZLR 254 (S) at 268 C-F, 1998 (2) BCLR 224 (ZS) at 235 I-J.

Furthermore, he said, what has been emphasised is that freedom of expression has four broad special objectives to serve, namely: (i) it helps an individual to obtain self-fulfilment; (ii) it assists in the discovery of truth, and in promoting political and social participation; (iii) it strengthens the capacity of an individual to participate in decision-making; and, (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

According to him, plainly embraced and underscoring the essential nature of freedom of expression, are statements, opinions and beliefs regarded by the majority as being wrong or false.

Quoting Justice Holmes in United States v Schwimmer 279 US 644 (1929) at 654, Chief Justice Gubbay said the fact that the particular content of a person’s speech might "excite popular prejudice" is no reason to deny it protection for "if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought – not free thought for those who agree with us but freedom for the thought of that we hate".

He stressed that mere content, no matter how offensive (save where the expression is communicated in a physically violent form), cannot be determinative of whether a statement qualifies for the constitutional protection afforded to freedom of expression. He cited for this proposition Libman v Quebec (Attorney General) (1997) 46 CRR (2d) 234 (Can. SC) at 250; R v Lucas (1998) 50 CRR (2d) 69 (Can. SC) at 82.

Justice Gubbay also noted that in the majority judgment of the European Court of Human Rights in Handyside v The United Kingdom (1979-80) 1 EHRR 737 at 754 (para 49) it was said that freedom of expression constitutes one of the essential foundations of a democratic society and it is applicable "not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society."

He referred also to S D Smith Skepticism, Tolerance and Truth in the Theory of Free Expression (1987) 60 So. Cal. L. Rev. 649 at 712, where the author argued that even patently false statements communicate particular truths and have a place in the marketplace of ideas because they help the marketplace to reject false ideas by revealing them for what they are.

He therefore held that the publication was protected by section 20(1) of the Constitution.

On the issue of whether the purpose or effect of section 50(2)(a) of the Act is to restrict this form of expression, Chief Justice Gubbay said there is doubt that both the State’s purpose in, and the effect of, section 50(2)(a) is to restrict expressive activity. He observed that the reality of being liable to criminal conviction and imprisonment for a period not exceeding seven years results very definitely in a curtailment of free expression, adding that all this was accepted to be so by counsel for the respondents.

Is the limitation which section 50(2)(a) of the act imposes on the right of free expression saved by section 20(2)(a) of the constitution?

Section 20(2)(a) of the Constitution reads: "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) in the interests of … public safety, public order …

except so far as that provision … is shown not to be reasonably justifiable in a democratic society".

Chief Justice Gubbay noted that in The Sunday Times v The United Kingdom (1979-80) 2 EHRR 245, the European Court of Human Rights was required to consider what was meant by the expression "prescribed by law" in article 10(2) of the Convention on Human Rights and that the majority of the court held at 271 (para. 49) that:

"In the Court’s opinion, the following are two of the requirements that flow from the expression ‘prescribed by law’. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances."

He said it was crucial, therefore, that the law must be adequately accessible and formulated with sufficient precision to enable a person to regulate his conduct and that he or she must know, with reasonable certainty, what the law is and what actions are in danger of breaching the law. He cited Barthold v Germany (1985) 7 EHRR 383 at 399 (para 47).

According to him, a provision will be too vague if it fails to provide a foundation for legal debate and discussion as an inadequate demarcation of an area of risk affords neither notice to a person of conduct which is potentially criminal, nor an appropriate limitation upon the discretion of the authorities seeking to enforce the provision. In such a situation, therefore, it offers no basis for the court to define limits of conduct.

Agreeing with the submission of counsel for the applicants that when dealing with the permissible limitation upon constitutionally protected rights, a court must ensure that if human conduct is to be subjected to the authority of any criminal law, he said the terms of such law must not be vague; for otherwise there will be a denial of due process. For this, he relied on three opinions of the United States Supreme Court in Connolly v General Construction Co 269 US 385 (1925) at 391; Cline v Frank Dairy Co 274 US 445 (1927) at 465; and Papachristou v City of Jacksonville 405 US 156 (1972) at 162.

More particularly, he said, it has been emphasised that even stricter standards of permissible statutory vagueness must be applied where freedom of expression is at issue, for at jeopardy are not just the rights of those who may wish to communicate and impart ideas and information but also those who may wish to receive them. He cited for this proposition Smith v California 361 US 147 (1959) at 151; Perera v Attorney General & Ors [1992] 1 Sri. LR 199 at 215 and 228 (Sri Lanka SC).

On the issue whether section 50(2)(a) of the Act overcomes this threshold test, Justice Gubbay said it was obvious that the provision does not just criminalize false statements; nor false statements which actually cause fear, alarm or despondency, but also criminalizes false statements which are likely to cause fear, alarm or despondency.

Observing that there was no requirement of proof of any consequences, of damage to the State or impact upon the public, he said what the lawmaker has provided for is a speculative offence and that an offence has been created out of a conjectural likelihood of fear, alarm or despondency which may arise out of the publication of any statement, rumour or report, even to a single person, adding that "It matters not that no fear, alarm or despondency actually eventuates".

He held that because section 50(2)(a) is concerned with likelihood rather than reality and since the passage of time between the dates of publication and trial is irrelevant, it is vague, being susceptible of too wide an interpretation and places persons in doubt as to what can lawfully be done and what cannot.

As a result, he said, it exerts an unacceptable "chilling effect" on freedom of expression, since people will tend to steer clear of the potential zone of application to avoid censure, and liability to serve a maximum period of seven years’ imprisonment.

He held that the provision was uncertain in the generality of the discretion conferred upon the Attorney-General as to whether to prosecute or not and in its use of language, insufficiently precise to demonstrate the area of risk and provide guidance of conduct to persons of average intelligence.

He said on both scores, taken cumulatively, it failed to meet the requirement of being "under the authority of any law", adding that this conclusion alone effectively disposed of the application against the respondents.

Is section 50(2)(a) a provision enacted in the interests of public safety or public order?

Chief Justice Gubbay said it is clear that limitations on freedom of expression which do not serve one of the legitimate six aims or exceptions listed in section 20(2) of the Constitution are not valid, adding that it is, however, not sufficient that the limitation on freedom of expression effects merely incidentally one of the specified legitimate aims, but that it "must be primarily directed at that aim and must correspond to a "compelling governmental interest".

He noted that the primary objective of the Legislature in enacting section 10 of the Public Order Act, 1955 and in continuing its existence, first in section 43 and then in section 50(2)(a) of the current Act, was to ensure that public safety and, especially, public order were not jeopardized by false news willfully or negligently spread by irresponsible journalists and rumour-mongers.

In such a situation, he said, section 50(2)(a), assuming non-vagueness of terminology, would offer an appropriate vehicle with the legitimate aim of ensuring public safety or public order, adding that nonetheless, a charge could only be laid in terms of it if the stipulated limitation was reasonably justifiable in a democratic society.

Is the limitation reasonably justifiable in a democratic society?

Chief Justice Gubbay recalled that in Nyambirai v NSSA & Anor 1995 (2) ZLR 1 (S) at 13 D-F, 1995 (9) BCLR 1221 (ZS) at 1231 H-J; and Retrofit (Pvt) Ltd v PTC & Anor 1995 (2) ZLR 199 (S) at 220 A-C, 1995 (9) BCLR 1262 (ZS) at 1277 G-I, the Court, following Canadian jurisprudence, set out the three criteria to be looked into in determining whether or not a limitation is permissible in the sense of not being shown to be arbitrary or excessive. To be answered are whether:

(i) the legislative objective which the limitation is designed to promote is sufficiently important to warrant overriding a fundamental right;

(ii) the measures designed to meet the legislative objective are rationally connected to it and are not arbitrary, unfair or based on irrational considerations;

(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

He said in determining the objective of a legislative measure, the court must have regard to the intention of Parliament when the provision was enacted or amended. He noted that at both stages, in 1955 and in 1961, the primary objective was to preempt and counteract threats to the internal security of the country by the publication of statements, rumours or reports considered by the government of the day to be false and capable of instilling in the people, or some of them, feelings of fear, alarm or despondency as to the political, economic or social conditions in the country.

He noted that since the advent of independence the need for recourse to section 50(2)(a) of the Act has not been felt. There has been no prosecution, adding that if the trial of the applicants is to proceed, it will be the first in 20 years.

This, in itself, he said, would seem to establish that there is no longer a primary objective, directed to a "substantial concern which justifies restricting the otherwise full exercise of the freedom of expression", nor is the retention of section 50(2)(a) necessary to fulfil any international obligation undertaken by the State.

According to him, in such circumstances, it cannot be said that the applicants have not discharged the burden of establishing that the objective of this piece of legislation is not of "pressing and substantial concern" in a democratic society, and is of insufficient importance to justify overriding the constitutional guarantee of freedom of expression.

He said even though section 50(2)(a) is capable of serving a legitimate aim, no objective of pressing and substantial concern has been identified in support of its survival.

Chief Justice Gubbay noted that, as the European Court of Human Rights was at pains to indicate in Castells v Spain (1992) 14 EHRR 445 at 477 (para 46): "(The) dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media."

With regard to the second inquiry, he said the fact that the net cast by section 50(2)(a) has not been employed by the State since the country attained majority rule in 1980, strongly suggests that it is not rationally connected to, and essential for, the intended objective of avoiding public fear, alarm or despondency and so to securing of public safety or public order.

He observed that section 50(2)(a) captures not only the publication or reproduction of any statement, rumour or report made with actual knowledge of its falsity which causes fear, alarm or despondency, but also sanctions the prosecution of all false publications or reproductions made negligently which the Attorney-General regards as not having caused, but only likely to cause, fear, alarm or despondency among the public or even in a single member of the public.

He ruled that section 50(2)(a) of the Act infringes the right of freedom of expression protected and guaranteed by section 20(1) of the Constitution and that such infringement is not saved by section 20(2) thereof.

Chief Justice Gubbay therefore declared that section 50(2)(a) of the Law and Order (Maintenance) Act was in contravention of section 20(1) of the Constitution.

He ordered that the costs of the application should be paid by the first respondent.

McNally JA, Ebrahim JA, Muchechetere JA: and Sandura  JA agreed with him.

* A P de Bourbon SC, for the applicants

* B Patel, with him F Chatukuta, for the respondents

 

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