The Sunday Mail
BY Rodgers Matsikidze
There has been a huge debate surrounding the law of defamation in recent weeks and this article looks at pros and cons of the law in question.
Defamation has not only been criminalised in Zimbabwe, but has its roots in common law.
The United Kingdom and Australia at one point had the law of criminal defamation. Zimbabwe’s common law is largely Roman-Dutch Law under which there was the law of action iniuriarum.
Grotius, a leading scholar in Roman-Dutch Law, argues that the main focus of the law of defamation was to protect wrongs against honour.
The underpinning consideration was whether the speech was made with malice or intention to bring harm to the honour of someone. The defence was that one can only escape liability in an action of defamation (iniuria famae) if the words spoken were true and their utterance was made for public benefit. The defence of public benefit was enunciated by another scholar, Voet, in his Commentary on the Pandects D.47.10.18, as a speech that was made for the benefit of the well-being of the commonwealth. The law of defamation then gave birth to civil and criminal defamation. The criminal defamation law thus has its roots in common law.
The Zimbabwean position
In Zimbabwe, the law of criminal defamation still remains part of our law, though having been recently struck off under the old Constitution. There is a matter pending in the Constitutional Court of Zimbabwe on the constitutionality of the same under the current Constitution. I will, therefore, not comment on it. Our law provides that one can be prosecuted for intentional and unlawful publication of speech or information that injures another person’s reputation. The offence is under Section 96 of the Criminal Law (Codification and Reform) Act (9.23) which provides that;
“(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.”
A number of such criminal defamation cases has found their way into the courts, for example Sv Marangarire 1977RLR 73 and Sv Modus Publications (pvt) 1996(2) ZLR 553. Two schools of thought have been proffered as to the relevance of criminal defamation in a modern state. Some believe it has outlived its purpose and some think it should be given a red card. Those who support its stay argue as follows:
1. It protects reputations of people in a society or against unwarranted allegations that lower esteem in society.
2. Some publications may be based on clear malice and aimed at hurting some people.
3. Further, some publications may be done for business purposes without verifying the authenticity of the content thereto.
4. If false speech is allowed some people may create despondency and alarm that can harm even the society at large.
5. There is growth of hate speech and abuse of free speech.
Those who are against its stay rely on a number of international statutes and best practices governing or regulating freedom of speech. Their arguments are anchored on article 19 of the Universal Declaration on Human Rights which provides that:
“Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”
The International Covenant on civil and Political Rights Article 19 and Article 9 of the African Charter provides the same. In addition the Zimbabwean Constitution has a provision that guarantees freedom of expression and access to information.
(See section 61 and 62 of the Constitution of Zimbabwe respectively.)
The arguments of those against its stay can be summed up as follows;-
1. There is great difficult to strike a balance between freedom of speech and right to information vis-a-vis criminal defamation.
2. It is archaic and takes away the guarantees of freedom of expression.
3. In some countries it may be used beyond the legitimate reason for protecting individuals, that is, protecting politicians who may abuse their office or some rich people who may want to protect their shenanigans.
4. It may be used to silence the critics and debate on state legitimate issues
5. Its sanctions are prohibitive of promotion of freedom of speech.
6. There are other better options to deter would be offenders, e.g civil actions.
In conclusion, it is my respectful opinion that despite its good intentions, criminal defamation is not a good law. There are other options that can be used:-
1. Repealing of all laws that provide for criminal defamation through Parliament.
2. Setting up a special Defamation Tribunal that is composed of all representatives of key institutions, that is, journalists, consumer council representatives, judges, civic society representatives, ordinary members of the society picked randomly in a jury system manner.
This tribunal would develop a less sophisticated procedure in which they hear matters and dispose them within the shortest possible time. The outcome should be published prominently in at least one daily newspaper. It should have power to order payment of compensation to the injured in a manner that does not again instil fear of freedom of speech.
3. Public authorities should be barred from raising allegations of criminal defamation to allow debate on key developmental issues.
4. There should be no imprisonment, community service or excessive fines for criminal defamation.
More importantly, society should value the key tenets of humanity, respect, togetherness, oneness and freedom of expression that does harm to others. Such a value system, though appearing idealistic, is the best for all.
◆ Rodgers Matsikidze LLB[Hons][UZ],Mphil Law [UZ] is a duly registered legal practitioner, notary public,conveyance, practising at Matsikidze and Mucheche Legal practitioners. He is the author of the suppressed voice, Alternative Dispute Resolution in Zimbabwe.
