Nevanji Madanhire and Nqaba Matshazi v Attorney-General

The applicants had been charged with criminal defamation under Count 2 in proceedings CRB No. 8020-21/11. On 12 June 2014, in Judgment No. CCZ 2/14, the Constitutional Court held that section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was inconsistent with the freedom of expression guaranteed by section 20(1) of the former Constitution. The Court found that the applicants had discharged the onus of showing that the impugned provision was not reasonably justifiable in a democratic society within the contemplation of section 20(2) of the Constitution. In accordance with section 24(5) of the former Constitution, the Court issued a rule nisi calling upon the Minister of Justice, Legal and Parliamentary Affairs to show cause why section 96 should not be declared unconstitutional. On 21 July 2014, the Minister filed a responding affidavit indicating no opposition to the intended declaration and consenting to confirmation of the rule nisi.

• Whether section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is inconsistent with and in contravention of section 20(1) of the former Constitution guaranteeing freedom of expression
• Whether the prosecution of the applicants for criminal defamation should be permanently stayed following the declaration of unconstitutionality

(1) Section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was declared inconsistent with and in contravention of section 20(1) of the former Constitution. (2) The prosecution of the applicants in respect of the charge of criminal defamation, being Count 2 in proceedings under CRB No. 8020-21/11, was permanently stayed. (3) No order as to costs.

Section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is inconsistent with and in contravention of section 20(1) of the former Constitution of Zimbabwe, which guarantees freedom of expression. The provision cannot be justified as reasonably justifiable in a democratic society within the meaning of section 20(2) of the Constitution. When a statutory provision is declared unconstitutional for violating freedom of expression, prosecutions based on that provision must be permanently stayed.

This judgment primarily contains the final declaratory order following the earlier substantive ruling in CCZ 2/14. The court did not make extensive obiter observations beyond the formal confirmation of the rule nisi and the issuance of the declaratory order. The unanimous agreement of all nine justices without separate concurring opinions suggests broad consensus on the constitutional invalidity of criminal defamation provisions that unjustifiably restrict freedom of expression.

This case is significant in Zimbabwean constitutional jurisprudence as it struck down the criminal defamation provision in section 96 of the Criminal Law (Codification and Reform) Act as unconstitutional, finding it violated the constitutional guarantee of freedom of expression. The decision demonstrates the Constitutional Court's willingness to protect fundamental rights and freedoms by declaring criminal laws unconstitutional when they unjustifiably infringe on freedom of expression. It represents an important development in the protection of media freedom and free speech in Zimbabwe, particularly in relation to criminal defamation laws which have historically been used to restrict journalistic freedom and public discourse.