Zimbabwe looks as though it will be joining the majority of countries who have scrapped criminal sanctions for defamation after the Constitutional Court found that this defined crime infringed our rights of freedom of speech without offering protection against defamation that could not be found through other means.
Admittedly, the court was having to apply tests contained in our old Constitution, rather than our new one, and the order finding the statute unconstitutional cannot be made final until the Minister of Justice, Legal and Parliamentary Affairs has indicated whether he wishes to present new arguments against the ruling. In our opinion, the Minister, even in the unlikely event that he wished to argue against the ruling, is unlikely to do so when faced with a unanimous decision by the nine most senior judges.
While the new Constitution words the exceptions to pure freedom of expression slightly differently it seems that the gains made do not require a second set of hearings and that this particular section of our criminal code could easily be dumped in the general clean-up that Parliament has to do to bring all our laws in line with the new Constitution.
Criminal defamation was a crime in Zimbabwe for almost 124 years. During that long period there was just one successful prosecution, a fairly open-and-shut case involving an accusation that a judge lied about doing something as part of his official duties. But even in such a serious case, and it is difficult to think of a more serious defamatory remark, no one went to jail. So the protection offered has been minimal, yet in recent years more people have been laying complaints under the relevant statute, largely in an effort to stop publication of certain facts or in an attempt to make life a misery for the person or newspaper who said or printed something someone did not like.
The ruling does not leave anyone defenceless against defamation. The civil law is remarkably effective; during that same 124 years where we saw one successful prosecution, there must have been thousands of civil suits for damages. Some of these were simply vexations and a try-on; others were seeking compensation for what were obvious and unjustified attacks on a reputation where the only pertinent point to debate was the level of damages.
In between there were a number of cases which could have gone either way. In civil suits the standard of proof is the balance of probabilities, rather than the proof beyond reasonable doubt required in a criminal case. This has helped those who have a reasonable, although not absolute, case and seems to work well. At the same time the way costs are awarded, against the loser, does make those with a weak case back away from trying something on when they do not really have a leg to stand on as well as encouraging newspapers and others who have published an unjustified defamation to settle out of court as quickly as possible before the bills mount up. The civil system is largely self-correcting.
The lack of stigma of a criminal conviction also encourages newspapers and others who defame someone without justification to admit their error quickly and present their apologies and make amends when this still matters. We have our ethics, which require this when we make a silly mistake, just as they require us to fight a case when we think we are in the right although then we are forced to consider if we are as right as we think we are at several steps along the path of a civil suit, again a self-correcting element.
Our practical experience, and lawyers have been writing to us for 122 years on these matters, definitely supports the legal arguments presented by our top judges: the civil law is remarkably effective in stopping us from being stupid or rash, encourages us to make amends as quickly as possible when we are either, and allows us to cope effectively with purely vexatious complaints from those with no real grounds for complaint. The criminal path offered no really effective protection against stupid journalism and did allow those with an axe to grind, but little evidence, to damage freedom of expression.
So on practical and ethical grounds, and now, we are very pleased to see on legal and constitutional grounds as well, we are happy to say farewell to a bad law.