Nyarota, Mudiwa charges unconstitutional
Despite the admission, the Attorney-General’s Office, responsible for drafting Bills, yesterday instructed that Nyarota and Mudiwa be further remanded to 27 February 2003
The government has conceded that Section 80 of the Access to Information and Protection of Privacy Act (AIPPA) under which Geoffrey Nyarota, the Editor-in-Chief of The Daily News, and Lloyd Mudiwa, the newspaper’s municipal reporter, are being charged is unconstitutional. The concession is made in the Access to Information and Protection of Privacy Amendment Bill of 2002, which the government says is designed to amend the principal Act with a view to improving it and correcting certain anomalies and errors that have come to the attention of the Department of Information and Publicity since the Act became law. Despite the admission, the Attorney-General (AG)’s Office, responsible for drafting Bills, yesterday instructed that Nyarota and Mudiwa be further remanded to 27 February 2003. But the State had undertaken to either provide them with a trial date or to remove them from formal remand when they last appeared at the Harare Magistrates’ Courts on 23 July. Nyarota had volunteered to attend court eight days earlier although the State had not formally summoned him to appear.
Fatima Maxwell, the senior public prosecutor for the Eastern Division, who admitted she had not read the Bill, said Joseph Musakwa, the director of Public Prosecutions in the AG’s Office, had instructed her to have the matter further remanded. She said the magistrate, Sandra Nhau, and prosecutors Thabani Mpofu and Never Katiyo, who previously dealt with the matter, were all away yesterday, while the original court record could not be located as it could have been referred to the Supreme Court where Nyarota and Mudiwa are challenging the section’s constitutionality. Harare regional magistrate Leonard Chitunhu remanded Nyarota and Mudiwa using a ‘dummy record’. Lawrence Chibwe of Stumbles and Rowe, who represented the journalists, asked Chitunhu to note on the court record that the State had undertaken to either provide a trial date or remove his clients from remand on the previous remand date. He asked Chitunhu to compel the State to do this on the next remand date.
Clause 20 of the Access to Information and Protection of Privacy Amendment Bill of 2002 says it seeks to substitute Section 80 of the Act because it is ultra vires the Constitution of Zimbabwe. ‘The new provision proposes to frame the offence of abuse of journalistic privilege’ in a manner that avoids any apparent conflict with the constitutional freedom of expression,’ reads the clause. The clause also seeks to reduce a maximum fine of $200 000 that can be imposed on a person convicted of the offence to $80 000. The maximum two year jail term, however, stands. Nyarota and Mudiwa are being charged with contravening Section 80 (1) (b) of AIPPA by allegedly abusing their journalistic privilege by publishing falsehoods. Charges against the two arose after The Daily News published a story claiming that Zanu PF supporters had beheaded a Magunje woman. Advocate Chris Andersen, who successfully applied for the case to be referred to the Supreme Court on 23 July to test its constitutionality, had argued that the section failed to define journalistic privilege, what a falsehood is and did not make intention a prerequisite for the offence.
The proposed substitution reads: ‘A journalist who abuses his journalistic privilege by intentionally or recklessly falsifying information, or maliciously or fraudulently fabricating information, or publishing any statement knowing it to be false or without having reasonable grounds for believing it to be true and recklessly, or with malicious or fraudulent intent, representing it as a true statement, or committing or facilitating the commission of a criminal offence shall be guilty of an offence.’ The person shall be liable to a fine not exceeding $80 000 or to imprisonment for a period not exceeding two years or to both such fine and imprisonment.