**Summary: Madanhire & Anor v Attorney General (2015) ZWCC 2**
**Area of Law & Issues**
Constitutional law concerning freedom of expression and criminal defamation in Zimbabwe. The key legal issue was whether section 96 of the Criminal Law (Codification and Reform) Act violated the applicants' right to freedom of expression under the Constitution.
**Parties & Court**
Nevanji Madanhire and Nqaba Matshazi (applicants) challenged the Attorney-General before Zimbabwe's Constitutional Court, with the Minister of Justice, Legal and Parliamentary Affairs intervening.
**Facts & Procedural History**
In an earlier judgment (CCZ 2/14 of June 2014), the Constitutional Court determined that section 96 criminalizing defamation was unconstitutional. The applicants had been charged with criminal defamation and sought to have the provision struck down. The Court found they successfully demonstrated the provision was not reasonably justifiable in a democratic society.
**Legal Question**
On the return hearing, the Court addressed whether to confirm a rule nisi (conditional order) requiring the Minister to explain why section 96 should not be declared unconstitutional and in breach of section 20(1) of the then-current Constitution (protecting freedom of expression).
**Holding**
The Constitutional Court (nine judges unanimously) confirmed the rule nisi. All judges agreed with Justice Patel's reasoned judgment. The Court declared section 96 unconstitutional and in breach of freedom of expression protections.
**Remedy**
The Court issued two operative orders: (1) a declaration that section 96 breached constitutional rights, and (2) an order permanently staying the applicants' criminal defamation prosecution. No costs were awarded to either party.
**Significance**
This judgment effectively decriminalized defamation in Zimbabwe, removing a common tool for suppressing expression. The government's non-opposition expedited the process, resulting in unanimous endorsement of the constitutional violation finding.
Judgment
Judgment No CCZ 2/2015 Const. Application No CCZ 78/12 0 DISTRIBUTABLE (1) NEVANJI MADANHIRE (2) NQABA MATSHAZI v ATTORNEY-GENERAL CONSTITUTIONAL COURT OF ZIMBABWE CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA & GUVAVA JA HARARE, SEPTEMBER 24, 2014 & FEBRUARY 19, 2015 No appearance for the applicant E. Makoto, for the respondent P. Machaya for the Minister of Justice, Legal & Parliamentary Affairs PATEL JA: On 12 June 2014, in Judgement No. CCZ 2/14, this Court held that s 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was inconsistent with the freedom of expression guaranteed by s 20(1) of the former Constitution. Furthermore, 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 s 20(2) of the Constitution. Consequently, in accordance with s 24(5) of that Constitution, the Court issued a rule nisi calling upon the Minister of Justice, Legal and Parliamentary Affairs (the Minister) to show cause why s 96 of the Criminal Law Code should not be declared to be in contravention of s 20(1) of the Constitution. On 21 July 2014, the Minister duly filed his responding affidavit. He averred that he had no cause to oppose the intended declaration and that the Court should proceed to finalise the matter as it deemed fit. On the return day, Adv. Machaya, appearing for the Minister, reiterated the position taken in the responding affidavit and consented to the confirmation of the rule nisi. At the close of submissions by counsel, the Court confirmed the rule nisi. We further indicated that an appropriate declaratory order would be issued in due course. In the result: It is declared that s 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is inconsistent with and in contravention of s 20(1) of the former Constitution.It is ordered that the prosecution of the applicants in respect of the charge of criminal defamation, being Count 2 in the proceedings under CRB No. 8020-21/11, be permanently stayed.There shall be no order as to costs. CHIDYAUSIKU CJ: I agree. MALABA DCJ: I agree. ZIYAMBI JA: I agree. GWAUNZA JA: I agree. GARWE JA: I agree. GOWORA JA: I agree. HLATSHWAYO JA: I agree. GUVAVA JA: I agree. Atherstone & Cook, applicant’s legal practitioners Civil Division of the Attorney-General’s Office, respondent’s legal practitioners
Judgment No CCZ 2/2015 Const. Application No CCZ 78/12 0
Judgment No CCZ 2/2015
Const. Application No CCZ 78/12
0
DISTRIBUTABLE (1)
NEVANJI MADANHIRE (2) NQABA MATSHAZI
v
ATTORNEY-GENERAL
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA & GUVAVA JA
HARARE, SEPTEMBER 24, 2014 & FEBRUARY 19, 2015
No appearance for the applicant
E. Makoto, for the respondent
P. Machaya for the Minister of Justice, Legal & Parliamentary Affairs
PATEL JA: On 12 June 2014, in Judgement No. CCZ 2/14, this Court held that s 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was inconsistent with the freedom of expression guaranteed by s 20(1) of the former Constitution. Furthermore, 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 s 20(2) of the Constitution.
Consequently, in accordance with s 24(5) of that Constitution, the Court issued a rule nisi calling upon the Minister of Justice, Legal and Parliamentary Affairs (the Minister) to show cause why s 96 of the Criminal Law Code should not be declared to be in contravention of s 20(1) of the Constitution.
On 21 July 2014, the Minister duly filed his responding affidavit. He averred that he had no cause to oppose the intended declaration and that the Court should proceed to finalise the matter as it deemed fit. On the return day, Adv. Machaya, appearing for the Minister, reiterated the position taken in the responding affidavit and consented to the confirmation of the rule nisi.
At the close of submissions by counsel, the Court confirmed the rule nisi. We further indicated that an appropriate declaratory order would be issued in due course.
In the result:
It is declared that s 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is inconsistent with and in contravention of s 20(1) of the former Constitution.
It is ordered that the prosecution of the applicants in respect of the charge of criminal defamation, being Count 2 in the proceedings under CRB No. 8020-21/11, be permanently stayed.
There shall be no order as to costs.
CHIDYAUSIKU CJ: I agree.
MALABA DCJ: I agree.
ZIYAMBI JA: I agree.
GWAUNZA JA: I agree.
GARWE JA: I agree.
GOWORA JA: I agree.
HLATSHWAYO JA: I agree.
GUVAVA JA: I agree.
Atherstone & Cook, applicant’s legal practitioners
Civil Division of the Attorney-General’s Office, respondent’s legal practitioners