THE Constitutional Court on Wednesday struck down a section of the Criminal Law Codification and Reform Act which criminalises publication of "falsehoods" and summoned the justice minister to defend its constitutionality.
Deputy Chief Justice Luke Malaba summoned Justice Minister Emmerson Mnangagwa when he handed down judgement in a case relating to the 2009 arrest of Alpha Media Holdings senior staffers Constantine Chimakure and Vincent Kahiya.
The journalists had challenged the constitutionality of the statute as they denied charges of "publishing or communicating a statement wholly or with the intention of undermining public confidence in law enforcement agents".
Their arrest followed publication by the weekly Independent newspaper of a report claiming that law enforcement agents had abducted some political and human rights campaigners in late 2008.
The report contained the names of police officers and state security agents implicated in the abductions of human rights campaigner Jestina Mukoko and other activists.
Chimakure and Kahiya however, questioned the constitutionality of the section under which they were charged.
In his judgement, Justice Malaba, ruled the section was unconstitutional as it contravened the declaration of the fundamental right to freedom of expression under Section 20 (1) of the Constitution.
"(The) section 31(a) (iii) of the Criminal Code is particularly invasive because of the level of the maximum penalty by which it has chosen to effect its end.
"A penalty of imprisonment of up to 20 years for publishing or communicating a false statement with the intention or realising that there is a real risk or possibility of undermining public confidence in a security service institution is draconian," he said.
Malaba asked Mnangagwa to appear, if he wishes, before the court by November 20 to explain why Section 31 should not be removed outright.
The judge added that the "only inference that can be drawn from the maximum penalty ... is intended to have a chilling effect on the exercise of freedom of expression as opposed to merely deterring the occurrence of the prohibited acts."
"It is an offence which punishes a person for conduct committed with intend to produce specific result or when realising that there is a real risk or possibility of the result occurring quite often regardless of whether the result materialises or not," said the deputy Chief Justice.
He also cited the United Nation Human Rights Commission Special Rapporteur who said;
"In the case of offences such as publishing or broadcasting "false" or "alarmist" information, prison terms are both reprehensible and out of proportion to the harm suffered by the victim. In all such cases imprisonment as punishment for the peaceful expression of an opinion constitutes a serious violation of human rights".