Mark Gova Chavunduka and Raymond Morgan Choto v Minister of Home Affairs and The Attorney-General

On 10 January 1999, The Standard newspaper published an article entitled "Senior Army Officers Arrested" concerning an alleged coup attempt. The first applicant was the editor and the second applicant was the senior reporter who authored the article. Both were arrested and charged under section 50(2)(a) of the Law and Order (Maintenance) Act for publishing a false statement likely to cause fear, alarm or despondency among the public. While on bail pending trial, the applicants applied to the Supreme Court under section 24(1) of the Constitution challenging the constitutionality of section 50(2)(a), arguing it violated sections 20(1) (freedom of expression) and 18(2) (right to fair trial) of the Constitution.

• Whether section 50(2)(a) of the Law and Order (Maintenance) Act infringes the constitutional right to freedom of expression under section 20(1) of the Constitution
• Whether the limitation imposed by section 50(2)(a) is saved by section 20(2)(a) of the Constitution as being reasonably justifiable in a democratic society
• Whether the provision is sufficiently clear and precise to meet the requirement of being 'under the authority of any law'
• Whether the legislative objective of section 50(2)(a) is of pressing and substantial concern to warrant overriding freedom of expression
• Whether the provision is rationally connected to its objective and minimally impairs the protected right

1. It is declared that section 50(2)(a) of the Law and Order (Maintenance) Act [Chapter 11:07] is in contravention of section 20(1) of the Constitution. 2. The costs of the application are to be paid by the first respondent.

A legislative provision restricting freedom of expression must be sufficiently clear and precise to enable citizens to regulate their conduct and know what is prohibited. A provision that criminalizes the publication of statements that are merely "likely" to cause "fear, alarm or despondency" is unconstitutionally vague and overbroad. Such a provision must: (1) be authorized by law that is adequately accessible and formulated with sufficient precision; (2) serve a legitimate aim of pressing and substantial concern; (3) be rationally connected to that aim; and (4) minimally impair the protected right. Criminal sanctions for speech should be reserved for serious misconduct with clear and pressing harm, not for statements that are merely incorrect or negligently false. A false news provision that has not been used for 20 years lacks a pressing and substantial objective. The existence of other legislative provisions and common law remedies to address legitimate concerns about public order demonstrates that an overbroad false news provision is not minimally impairing.

McNally JA observed that the Court was not saying freedom of expression is limitless or that people may publish anything regardless of content. He emphasized it is not the Court's function to re-draft legislation - that is Parliament's role. He noted that after the Munhumeso decision striking down provisions on demonstrations, critics wrongly claimed the Court had made police work impossible by "tying their hands," when in fact the Court had struck down an oppressive provision and explicitly suggested Parliament redraft it. He urged the relevant Ministry to urgently rewrite the Act in proper form. Gubbay CJ made extensive comparative observations about false news provisions in other jurisdictions, noting they are non-existent in many democracies including Australia, France, Netherlands, UK, USA and Canada, and are very limited in scope where they exist. The Court observed that language is used in complex and subtle ways, making it impossible to clearly divide statements into fact and opinion, and that rhetorical devices, metaphor and sarcasm are examples of superficially false statements that may be substantially correct or expressions of opinion.

This landmark decision is of fundamental importance to Zimbabwean constitutional law and media freedom. It establishes strong protection for freedom of expression, particularly press freedom, by striking down overbroad "false news" provisions. The Court applied strict scrutiny to criminal laws restricting speech, requiring clear language, pressing objectives, rational connection, and minimal impairment. The judgment demonstrates that even false statements can have constitutional value and that content alone cannot determine protection. It emphasizes that in a democracy, the remedy for false speech is more speech and political action, not criminal prosecution. The decision aligns Zimbabwe with international human rights standards and democratic jurisdictions that reject or strictly limit false news provisions. It sends a clear message that vague, overbroad criminal restrictions on expression that create a "chilling effect" will not withstand constitutional scrutiny.