Subordinating Freedom of Expression to Human Dignity: Promoting or Undermining Journalism—A Case of Zimbabwe

ABSTRACT

Motivated by a 2014 Constitutional Court opinion that under Zimbabwe’s new constitution of 2013, freedom of expression might have to be considered as subordinate to human dignity, the study analyses the implications of this on journalistic practice. The study argues that such a move would undermine watchdog journalism, thereby limiting people’s freedom of expression right to receive information. This is based on a textual analysis of Zimbabwe’s freedom of expression jurisprudence, which shows that currently the odds are in favour of protecting the reputation of those in power. Thus, subordinating freedom of expression to human dignity might mean worsening an already bad situation.

KEYWORDS:

• Freedom of expression
• human dignity
• First Amendment
• Zimbabwe
• human rights
• ubuntu

Introduction

Since its declaration as a fundamental human right more than 70 years ago (United Nations General Assembly 1948), freedom of expression has evolved into a universal principle guaranteed by many constitutions around the world (Media Legal Defence Initiative 2015). Thus, it has become an individual and collective civil and political right enshrined in national constitutions and international law (Inter-Parliamentary Union 2016). It is honoured because of its social benefits such as truth discovery, individual self-fulfilment, facilitating citizens’ participation in democracy and a way to avert suspicions on the government (Barendt 2005). In turn, the press is accorded freedom to be a vehicle for people’s expression so it can facilitate realisation of the above-mentioned freedom of expression social benefits. This means restrictions on freedom of the press are tantamount to restrictions of freedom of expression with an impact on journalistic practice. This complicates how to balance freedom of the press with other interests like human dignity, reputation, privacy and national security, among others. This is especially so in countries like Zimbabwe where the constitution guarantees human dignity, raising the question of which right is superior: freedom of expression or human dignity.

This question was left hanging by the Zimbabwe Constitutional Court (ConCourt) in Madanhire & Matshazi v. Attorney General (2014) in which the court ruled that criminal defamation was unconstitutional as it violated s 20 of the country’s old constitution of 1979, which was replaced by the 2013 one. The new constitution not only guarantees freedom of expression in s 61, but also does not protect malicious injury to one’s reputation or dignity. Under s 51 the 2013 constitution stipulates that every human being has an inherent dignity that must be respected and protected. Justice Patel stated thus: “having regard to these provisions, taken together, it is arguable that the freedom of expression conferred by s 61 is to be more narrowly construed as being subordinate to the value of human dignity”. One advantage from constitutional protection of human dignity is that it can give equal protection to both ordinary citizens and public officials, which is unlike defamation that favours elites—those in power like public officials, public figures and the rich (Media Legal Defence Initiative 2015). What is at issue, though, are the implications of subordinating freedom of expression to human dignity on community interests and journalistic practice.

To provoke discussion around this issue, the study assesses the current state of freedom of expression by analysing and comparing Zimbabwe’s freedom of expression jurisprudence on defamation, false news and insult cases between two eras, 2000–2007 and 2013–2020. Jurisprudence is a complex concept, but for the purposes of this discussion, the study adopts Stone's (1944) definition of the concept as examination of the law in relation to other disciplines, e.g. freedom of expression in relation to other rights. In the context of this study, false news is not defined as fake news, which are deliberate falsehoods designed to mislead, but those stories accused of lacking truthfulness in the courts (Jaster and Lanius 2018). The 2000–2007 era is selected as an era that witnessed crafting of repressive legal instruments that saw the jailing of local journalists and the deportation of foreign ones. The 2013–2020 period offers a good era for comparative purposes as it was under a different constitution. This was also for practical purposes to reduce the data to manageable levels. The jurisprudence analysed here is compared to how other international jurisdictions have defended freedom of expression and the press as fundamental human rights. The jurisprudence will also be assessed against the stipulations of ubuntu values (an African philosophy that guides human conduct) on freedom of expression as part of efforts to anchor freedom of expression and the press rights in an African perspective (Milton and Mano 2021). In fact, ubuntu has been described as an alternative moral theory to understand power relations that can be used in various researches (Tavernaro-Haidarian 2017). Ultimately, Zimbabwe’s jurisprudence will be assessed to find which of the two, ubuntu values or liberal freedom of expression values, it satisfies and the implications on journalistic practice in the country.

The following section reviews the social benefits of freedom of expression and how freedom of the press is regarded as a vehicle for their realisation. This is followed with a review of what forms of journalism are considered permissible under ubuntu and its values as well as the impact of that on community interests before a textual analysis of Zimbabwe’s jurisprudence on defamation and related cases. The study argues that subordinating freedom of expression to human dignity is not necessarily in line with ubuntu as well as liberal values and there might be benefit in borrowing from both perspectives.

Conceptual framework

The following section examines how the social benefits of freedom of expression and press freedom as well as these rights have been restricted in different international jurisdictions. This is followed with an examination of the ubuntu theory, its guiding values and its implications for journalistic duties and their rights.

Social benefits of freedom of expression

Freedom of expression’s social benefits can be grouped under the following arguments or rationales: the marketplace of ideas (Calvert et al. 2018); checking government power (Emerson 1962; Blasi 1977); individual self-fulfilment and self-realisation (Oltmann 2016). These ideas have been recognised and defined in various legal jurisdictions. Echoing the marketplace of ideas and checking government principles, freedom of expression has been described as a core value of any democratic society (Media Legal Defence Initiative 2015). For example, in Holomisa v. Argus Newspapers Ltd (1996), High Court of Johannesburg judge noted that robust criticism of those in power ensures the success of a constitutional democracy. Freedom of expression also facilitates citizens’ participation in democracy by equipping them with the truth so they can exercise freedom of choice in selecting a government and policies and expose government abuse of office as has been noted by various courts around the world. These marketplace of ideas and checking government power values have been echoed in South African, Indian and Zimbabwean Supreme Courts, among other regions (Media Legal Defence Initiative 2015).

Freedom of expression further allows checking government power through a free flow of ideas which facilitates accountability and transparency as has been noted by the East African Court of Justice (EACJ) in Burundi Journalists’ Union v. The Attorney General of the Republic of Burundi Reference No. 1 (2014). The European Court of Human Rights (ECtHR) has also noted that freedom of expression facilitates social and individual development. This comes in the form of stable change as noted by the Zimbabwean Supreme Court (supra) that connected this development to self-fulfilment. The Inter-American Court of Human Rights (the IACtHR) has also noted a dual aspect of freedom of expression that involves the audiences’ right to receive information (Media Legal Defence Initiative 2015). It has also been noted that the press has a special role in aiding realisation of freedom of expression and its associated benefits.

Role of freedom of the press in freedom of expression and its protections

Various jurisdictions make a direct connection between freedom of expression’s social benefits and freedom of the press. The South African Supreme Court in National Media Ltd and Others v. Bogoshi (1999) described the press as the people’s means to express their concerns, thereby being the people’s voice. The press also helps in the realisation of freedom of expression’s social benefits by playing a watchdog role—social monitoring of those in power on behalf of the public (Miller 2006) through which they impart information to the public as is recognised by the ECtHR (Media Legal Defence Initiative 2015). The ECtHR has also made reference to the press’s role in a democracy as well as realisation of a marketplace of ideas by recognising that the press helps people come up with opinions about their leaders, thereby allowing everyone to participate in political debate. Because of the freedom of expression social benefits that the press delivers, various instruments have been developed in defence of freedom of the press.

To protect the press in the modern era, public officials’ protection from criticism using insult, sedition or defamation laws has been reversed (Media Legal Defence Initiative 2015). Feltoe (2018) defines defamation as harming one’s reputation—the esteem in which one is regarded by reasonable members of the society. The US’s First Amendment explicitly limits government officials’ protection of reputation and privacy (Franklin et al. 2016) to avoid a situation whereby public officials and figures may abuse reputation protection (Media Legal Defence Initiative 2015). Political figures are expected to be tolerant of criticism, a position that has been adopted by regional human rights courts. For example, in Konaté v. Burkina Faso, Application No. 004/2013 (2014), the IACtHPR noted that public figures must endure higher levels of criticism. This is because, as argued by the European Convention of Human Rights (ECHR), public figures knowingly and willingly expose themselves to public scrutiny, unlike private citizens.

The above reasoning has led to the requirement that if public officials are to successfully sue for defamation, they should overcome a higher threshold. Under the US’s First Amendment, public officials cannot sue the media for libel without fault (actual malice—public officials/figures or negligence—private citizens; Franklin et al. 2016). This law was first developed in New York Times Co. v. Sullivan 1964, where the US Supreme Court invalidated an Alabama libel law that was insufficiently protective of the right of the media to be wrong as opposed to knowingly publishing false and defamatory statements (Franklin et al. 2016). In deciding the case, the court was guided by the principle that “debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Two fundamental standards are important to note in this case: rejection of burdening the speaker with proving the truth in defamation cases, and protection of erroneous statements for the sake of safeguarding free debate.

However, US’s burden of proof mechanism is not accepted everywhere. For example, the ECtHR is not persuaded by it although they have widened the permissible limits of government criticism (Media Legal Defence Initiative 2015). The US’s protection of erroneous statements has also been extended to other jurisdictions. For example, in National Media Ltd and Others v. Bogoshi (1999), the South African Supreme court held that strict liability is incompatible with freedom of expression. Instead, the courts now determine if it was reasonable for the press to publish the information (Media Legal Defence Initiative 2015). The High Court of Johannesburg outlined that to determine if it was reasonable to publish, it considers the nature of the allegations, their tone and extent, giving greater latitude to political discussions (Holomisa v. Argus Newspapers Ltd 1996). This standard is used to protect journalism’s watchdog role. The ECtHR has previously ruled that if journalists were to be expected to verify everything with the precision of a court’s degree, it would undermine journalism’s watchdog role and the freedom of the press (Media Legal Defence Initiative 2015). The court stated that it is enough for journalists to follow professional practice and their honest mistakes should not be punished.

To further protect freedom of expression and the press, some jurisdictions have also moved away from punitive and disproportionate remedies in defamation cases. In New York Times Co. v. Sullivan 1964 it was noted that fear of damage awards may have a more chilling effect than prosecution under criminal defamation. The IACtHR also notes that heavy fines do not redress the fault but instead punish the defamer (Konaté v. Burkina Faso, Application No. 004/2013, 2014). This is why the US Supreme Court has stated that in order to recover damages, public officials should prove actual malice to make it commensurate with officials’ absolute privilege intended to facilitate effective administration of government policies. Even when it comes to people’s right to honour and reputation protected under the Universal Declaration of Human Rights (UDHR), the ECtHR only recognises litigation if the case meets enough gravity (Media Legal Defence Initiative 2015). Thus, it must violate respect of one’s private life or undermine their personal integrity.

Under the US law, criticism of public figures is also protected through the extension of the New York Times Co. v. Sullivan 1964 rule to public figures. Arguments behind the extension of the New York Times Co. v. Sullivan 1964 to public figures is that there is no logical basis for separating them from public officials. Furthermore, the Warren court recognised that public figures play an influential role in ordering society and have the means to counter criticism, hence the public has justifiable interest in their conduct. In addition, procedures adopted in New York Times Co. v. Sullivan 1964 for testing if there is actual malice have made it difficult for public officials and figures to successfully sue for libel. The rule is that these kinds of plaintiffs must prove actual malice with convincing clarity (Franklin et al. 2016).

Ubuntu values and freedom of expression in Africa

In making the argument of whether the sub-Saharan African philosophical world view of ubuntu that shapes human conduct (Mokgoro 1998) is compatible with freedom of expression rights, it is important to first recognise that there are different views of the concept. Arguably, these can be classified into conservative, middle ground and liberal perspectives. The conservative perspective is arguably represented by the likes of Kasoma (1996), who foregrounds community interests, human dignity and privacy ahead of individual rights. According to this view, no individual exists outside of community relationships. On the other hand, scholars like Gyekye (1992) arguably represent the liberal side, arguing that even under the communitarian theory, individuals still do have their attributes. Then there are neutrals in the form of Wasserman and de Beer (2005) and Metz (2015), who arguably try to bridge the gap between the conservative and liberal ubuntu values. Be that as it may, there are certain basic ubuntu values and principles that all these scholars agree on.

Basically, ubuntu is guided by the idea that to be a person, one has to be humane or friendly, which basically means demonstrating moral virtue (Metz 2007, 2015). One is said to have demonstrated moral virtue by showing the following ubuntu values in their conduct: consensus in decision making; reconciliation instead of retributive punishment; corporative wealth creation and distribution instead of competitive and individualistic wealth creation where winner takes all; show solidarity and compassion by standing with those in need; conforming with tradition and its rituals; respecting others; value human dignity, etc. (Metz 2007; Mokgoro 1998).

This is captured in the key statement that a person is a person through other persons. Interpretation of this statement is arguably what creates conservatives and liberals as well as giving problems in defining journalistic duties and responsibilities, their rights, duties and those of citizens. Splitting the statement into two, “a person is a person” and “through other persons”, will help make sense of this complexity. One version is that “a person is a person” simply means one has to strive to show moral virtue (Metz 2015), while other scholars like Gyekye (1992) argue that a person is a person because of what they are. The implication of these interpretations cannot be unpacked before dissecting the meaning of “through other persons”.

The second aspect, “through other persons”, simply means one is not a person outside of relationships with others. This means individuals only become human or persons by relating with others, getting into relationships where they attain their identity, participate in community activities as well as learning and expressing being humane. This has led to the argument that ubuntu is a communitarian theory: meaning to say everything is judged on the basis of how good it is for the community (Metz 2015). The biggest question here is, whether the community takes precedence over the individual or vice versa. If “a person is a person” is to mean one has to strive to attain moral virtue, then it means the community takes precedence. This has been advocated for by such scholars as Kasoma (1996).

Going by the view that community takes precedence over the individual, every action is judged in terms of how good it is for the community (Kasoma 1996). While this view is the same as held by ubuntu scholars who admit that individuals have their own attributes, what Kasoma is arguing here puts serious limitations on freedom of expression. For instance, he puts so much emphasis on respecting people’s dignity because to him, reputations cannot be repaired once they have been harmed. In line with the ubuntu value that discourages retributive justice in favour of reconciliation Kasoma argues that wrong-doers should be constantly advised and counselled. Furthermore, he argues that counselling should be done by elders and if the young are to criticise the elderly, they need to follow proper etiquette. The downside to this argument is how far such reverence can go when dealing with elders or elites who may jeopardise the whole community’s interests. Thus, Kasoma’s views might actually elevate the dignity of elders at the expense of the community and the biggest question when it comes to Zimbabwe is how rights to freedom of expression are balanced against such ubuntu values.

The Zimbabwean constitution of 2013 protects ubuntu values of human dignity. The constitution’s s 57 guarantees one’s right to privacy while s 51 protects human dignity. Furthermore, s 61(5) provides limitations on freedom of expression. According to the section, freedom of expression does not extend to incitement for violence; advocacy of hatred or hate speech; malicious injury to one’s reputation or dignity; or malicious or unwarranted breach of one’s privacy rights. As outlined by Limpitlaw (2013), Zimbabwe’s constitution protects freedom of expression in s 61(1). This right includes artistic, scientific research, creativity and academic freedom. Furthermore, s 61(2) also protects freedom of the media which includes protection of journalistic sources. In addition, s 62 provides a right of access to information. These rights are also closely linked to the right of conscience in s 60(1)(2).

The significance of understanding how the above rights are balanced with freedom of expression is motivated by the fact that while Zimbabwe no longer has criminal defamation, it still has civil defamation. As argued by Feltoe (2018), civil defamation can have a chilling effect on the media. Moreover, there are still other laws that do have a constraining and chilling effect on freedom of expression and the media (Nordvik 2014), which further raise the question of whether they are good for the Zimbabwean community. For example, it is still an offence under the Criminal Law (Codification and Reform) Act to publish false statements that are prejudicial to the state (Feltoe 2018) as well as insulting or undermining the authority of the president. Furthermore, even though the new constitution guarantees one’s access to information, laws like the Official Secrets Act can be used to deny journalists, citizens or anyone access to information (Feltoe 2018). According to Feltoe (2018), even though criminal defamation has been scrapped, these laws complicate the law of civil defamation for the media because under the law of civil defamation, one has to prove truth in the public interest in order to be absolved.

The above laws and the attempt to balance ubuntu values and freedom of expression rights raise further questions about journalistic duties and rights when looked at from a different ubuntu perspective. This is the view that the individual is both communitarian and other things (Gyekye 1992). Thus, as Gyekye (1992) expands, this individual has a right to self-determination and governance as they can challenge community values and goals. From this perspective, freedom of expression is a necessity for the community’s good. In fact, for people to share their identity, goals and values, there is need for community participation (Blankenberg 1999). From this perspective, freedom of expression is a necessity for building community relationships. This view calls for a different form of journalistic practice that also pivots community interests.

This perspective views a journalist as a community member who cannot present problems in a neutral way using the objectivity norms (Blankenberg 1999). Blankenberg (1999) calls this liberation journalism that should have positive material consequences for the community. He further argues that when viewed as community members, bias becomes a preferred journalistic form of practice as it challenges dominant ideologies. It is then arguable from this view that African societies, even when using ubuntu, might actually need more speech rights protections than the most liberal societies. In any event, even the most conservative ubuntu values should be adapted to suit this because Africa cannot be restored to default settings anymore. As argued by Mokgoro (1998), conservative ubuntu values worked perfectly well in traditional African societies because they were in line with prevailing institutions. Now, after colonialism and contact with the outside world, Africa cannot return to that world anymore.

While it is true that Africa cannot be restored to precolonial default settings, it is important to first understand how under some African countries, freedom of expression and press rights are balanced against ubuntu values in defining journalistic obligations. To this end, this study seeks to interrogate the following questions by examining Zimbabwe’s jurisprudence in freedom of expression and speech cases:

1. How are Zimbabwe’s freedom of speech and press rights balanced against other competing interests like personal reputation?

2. Based on the current state of freedom of expression and the press, what is the potential impact of subordinating freedom of expression to human dignity on journalism practice and community interests?

Methodology

To answer the above research questions, a total of 48 cases involving defamation (both criminal—pre-2014 and civil defamation) were subjected to textual analysis (David and Sutton 2011). These cases were gathered from the Zimbabwe Judiciary Services Commission and the Zimbabwe Legal Institute’s websites. Different search terms involving words such as defamation, civil defamation, criminal defamation, insulting the president, undermining the authority of the president were used. Headlines for cases filed for each year were also read to ascertain what they were about. Thirty-one cases were gathered from the Harare High Court; nine from the Bulawayo High Court; two from the Supreme Court; and six from the Constitutional Court. Thirty-five of these cases were from the pre-2013 era while 13 were presided over after the new constitution. These cases were subjected to open coding (David and Sutton 2011) to ascertain the rationale behind their jurisprudence. These values were compared with the ones from the First Amendment jurisprudence and liberal ubuntu values stipulations.

Freedom of expression/speech jurisprudence in Zimbabwe

The following section seeks to demonstrate why it will be an anomaly for freedom of expression to be subordinated to human dignity as suggested by the ConCourt in Madanhire & Matshazi v. Attorney General, 2014. The study aims to show this by demonstrating how, in its current form, Zimbabwe’s jurisprudence is not only inconsistent with the general values that freedom of expression seeks to protect, but ubuntu values as well. In projecting this argument, the paper first draws on the values that the Zimbabwean judiciary have always safeguarded in protecting freedom of expression. This is done in comparison to values protected under freedom of expression jurisprudence in different jurisdictions. Comparison is also drawn between these values and those guarded by ubuntu.

Freedom of expression subordinated to reputation, dignity and integrity

Insofar as determination of defamation cases is concerned, there are some similarities between Zimbabwe’s law of civil defamation and how it is applied in other jurisdictions. As can be illustrated using, for example, MacElree v. Philadelphia Newspapers, Inc. 1996, the usual steps of determining the meaning of the words, ascertaining if the ascribed meaning is defamatory (Franklin et al. 2016), are similarly followed in Zimbabwe. In addition, in the same way a plaintiff has to prove identification in the defamatory material complained of in the US (Franklin et al. 2016), so is the case in Zimbabwe. However, differences begin to emerge when it comes to balancing freedom of expression/speech with other values. This can be witnessed in procedural issues and determination of damages. As will be shown here, in as far as defamation is concerned, the Zimbabwean judiciary seems to value human reputation, especially of elites, over freedom of expression. This creates tension between values that freedom of expression seeks to protect and human reputation and dignity in general.

The Zimbabwean freedom of expression jurisprudence tends to be both liberal and conservative, with the former arguably subordinated to the later. It is quite liberal in its protection of the following values: marketplace of ideas, individual self-fulfilment, self-governance and as a mechanism to ensure a balance between stability and social change. These values have largely come up in false news cases rather than in defamation. The marketplace of ideas ideal was brought up in Mudede v. Ncube & Others, 2004 where the plaintiff was charging the defendants with defamation. The defendants had published a story that Mudede, then a senior government official, was likely to escape from repaying a bank loan because his name was missing from the list. In ruling for the defendants, Judge Mungwira held that “to order in favour of the plaintiff would have the result of preventing the dialogue and debate necessary to seek the truth”. This is similar to the US’s freedom of expression jurisprudence (Calvert et al. 2018). It is also an argument that does not need much belabouring that the truth, no matter under what circumstances, is good for the community, especially under ubuntu which values moral virtue (Metz 2007, 2015).

Zimbabwe’s jurisprudence also echoes arguments used in defending individual self-fulfilment, self-governance values guided by the rationale that this balances stability and social change (O’Rourke 2001). Chavhunduka and others v Minister of Home Affairs and another, 2000 and Constantine Munyaradzi Chimakure, Vincent Khahiya, Zimind Publishers (PVT) LTD vs The Attorney-General of Zimbabwe, 2013 are two false news cases where these values have been articulated. In the first case, the appellants challenged the constitutionality of s 50 of the Law and Order Maintenance Act (LOMA)—now repealed, that criminalised publication of false statements prejudicial to the state. The appellants had published a news story about an attempted coup by the Zimbabwean military. Ruling in favour of the appellants, Judge Gubbay noted that freedom of expression has the following four objectives:

1. it helps an individual to obtain self-fulfilment;

2. it assists in the discovery of truth, and in promoting political and social participation;

3. it strengthens the capacity of an individual to participate in decision making; and

4. it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

This was to be repeated by the ConCourt in the second case where the appellants were also challenging constitutionality of s 31(a)(iii) of the Criminal Law (Codification and Reform) Act that criminalised publication of statements likely to undermine public confidence in the security services. Echoing the individual autonomy values, the ConCourt held that there is “one indivisible freedom for every individual and that is freedom from unwarranted interference by Government … Freedom of expression asserts the autonomy of thinking, linguistic and communicative elements of the life of an individual”. This echoes the liberal ubuntu position that even though communitarian interests take precedence, a person remains a person because of what they are as individuals with a right to self-determination and governance who can challenge community values and goals (Gyekye 1992). In this case, the ConCourt also demonstrated a limitation on community interests by holding that individuals are “under a duty to promote the general welfare of the community to the extent that it is not injurious to his or her own lawful interests”. This demonstrates the importance of protecting freedom of expression as an individual right not just for the individual but to promote ubuntu values and watchdog journalism. This intersection between market value and self-fulfilment ideals and ubuntu values is also demonstrated when the ConCourt made the following statement:

it is by receipt of ideas and information imparted to him or her by others that the individual can become a social being. He or she would know whether his or her view of the world is correct or wrong thereby attaining self-fulfillment, political or social participation and discovery of truth

Thus, the marketplace of ideas ideal helps one become a person through other persons (e.g. Gyekye 1992) by getting to know the truth and falsehoods. At the same time this leads to self-fulfilment and enables self-governance by empowering one to participate in community activities, which is a key aspect of ubuntu philosophy. Arguably, this shows the possibility of drawing a balance between individual rights and community more than scholars like Kasoma (1996) would agree.

The above freedom of expression objectives have also been repeated in Madanhire & Matshazi v. Attorney General, 2014, a landmark ruling that saw the scrapping of criminal defamation from Zimbabwe’s statute books. The applicants challenged the constitutionality of s 96 of the Criminal Law (Codification and Reform Act) that provided for criminal defamation. The appellants had been charged with criminal defamation after alleging that Green Card Medical Aid Society (the Society) was on the brink of collapse, unable to pay its members, staff and creditors. The society’s founder and chairman, Munyaradzi Kereke, sued them for criminal defamation, after which they challenged its constitutionality under Zimbabwe’s former constitution. Ruling in favour of the appellants, the ConCourt held that “freedom of expression, coupled with the corollary right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection”. Here ConCourt echoed South Africa’s Supreme Court in Hoho v. The State, Case No. 493/05 2008, which they cited further repeating freedom of expression objectives that are also in line with the liberal ubuntu values:

Suppression of available information and of ideas can only be detrimental to the decision-making process of individuals, corporations and governments. It may lead to the wrong government being elected, the wrong policies being adopted, the wrong people being appointed, corruption, dishonesty and incompetence not being exposed, wrong investments being made and a multitude of other undesirable consequences.

In scrapping criminal defamation from Zimbabwe’s statute books, the ConCourt also noted some key hazards that come with freedom of expression but deserves to be protected or at least be recognised as necessary evils. In Madanhire & Matshazi v. Attorney General, 2014 the ConCourt held that press roles cannot be performed without defaming people. Making reference to the checking value as in the US’s jurisprudence, the ConCourt stated that criminal defamation “may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices”. Citing Hoho’s case (supra), the ConCourt used the principle that for the greater good, even false information has to be protected. The citation from Hoho’s case stipulates that even though “false information will not benefit a society, democratic or otherwise, the right to freedom of expression is not restricted to correct or truthful information”. In many respects, this will facilitate ubuntu’s liberation journalism as argued by Blankenberg (1999).

Furthermore, the ConCourt states that erroneous or inaccurate information cannot take away the freedom of expression rights. Echoing and even citing New York Times Co. v. Sullivan 1964 in Constantine Munyaradzi Chimakure, Vincent Khahiya, Zimind Publishers (PVT) LTD vs The Attorney-General of Zimbabwe, 2013 the ConCourt stated that “truth is not a condition sine qua non of the protection of freedom of expression”. To protect freedom of expression, the ConCourt adopted the US Supreme Court’s clear and present danger test as stated by Justice Brandeis in Whitney v. California 1927. The ConCourt stated thus, expression can only be restricted on the basis of content if there is a “demonstrable direct and proximate causal link between it and actual or potential harm to a public interest listed in”. Further citing Justice Brandeis, the ConCourt applied the more speech rule and stated that if there is “time to expose through discussion the falsehood and fallacies to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence”. In many respects, this is also in line with the liberal ubuntu version of reconciliation and liberation journalism. However, the case seems to be different when it comes to defamation.

Even though criminal defamation has been invalidated in Zimbabwe, it remains unclear if freedom of expression takes precedence over human dignity, which has implications for reputation protection or the other way around. Passing judgement in Madanhire & Matshazi v. Attorney General, 2014, Justice Patel stated that “having regard to these provisions, taken together, it is arguable that the freedom of expression conferred by s 61 is to be more narrowly construed as being subordinate to the value of human dignity”. This case was left hanging as he said it is one of the matters “for argument and consideration as and when an appropriate case is brought for determination before this Court”. This substantially differs from the general reversal of protecting public officials and figures from criticism (Media Legal Defence Initiative 2015). For instance, the IACtHR’s position is that public officials must be subjected to robust criticism. The US’s First Amendment actually limits government protection of reputation and privacy (Franklin et al. 2016). While conservative ubuntu scholars like Kasoma (1996) would arguably be agreeable to subordinating freedom of expression to human dignity, this will be difficult to align with liberation journalism advocated for under ubuntu (Blankenberg 1999). In line with the ubuntu value that one should stand in solidarity and compassion with those in need (Metz 2007; Mokgoro 1998), Blankenberg (1999) calls for liberation journalism that has material consequences for the people. In liberation journalism, according to Blankenberg (1999), reporters are to be viewed as community members who present problems in a biased manner. Thus, if objectivity is to be downplayed in liberation journalism, it may mean that ubuntu societies, including Zimbabwe, might actually need more freedom of expression protections than liberal societies. So far, examination of Zimbabwe’s jurisprudence seems to lean in favour of protecting human dignity, especially of the elites.

Generally, reputation is highly protected in Zimbabwe, even post-2013 after the scrapping of criminal defamation. Probably most telling of this position is how Judge Chigumba opened her legal opinion in Mugwadi v. Dube & Others, 2014. The plaintiff, a public figure (musician), had sued the defendants for publishing a story purporting that she was abusing drugs and did not know the father of her son, among other misdemeanours. Ruling in favour of the plaintiff, Judge Chigumba opened her legal opinion with a Shakespearean citation:

Good name in man and woman, dear my lord,

Is the immediate jewel of their souls;

Who steals my purse steals trash; ‘tis something, nothing

Twas mine, ‘tis his and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him

And makes me poor indeed.

William Shakespeare, Othello, Act III Scene 3 lines 155–61

The above stanza just shows that under the Zimbabwean judiciary, reputation is valued more than money. Indeed, evidence indicates that this is especially so when it comes to public officials and figures.

Unlike under the First Amendment where the government cannot use reputation and privacy to suppress freedom of expression, in Zimbabwe the gravity of defamation is determined by the plaintiff’s standing in society. In Garwe v. Zimind Publishers (PVT) Limited & Others, 2007 Judge Gwaunza cited Burchell in arguing that “the gravity of the imputation often depends on the standing of the plaintiff”. In this case, the plaintiff had sued defendants for publishing a story that he intended to pass judgement without the input of court assessors. The case, where former opposition leader, the late Morgan Tsvangirai, was being charged with treason had attracted a lot of attention. In assessing the case, the judge considered that Garwe had been Judge President of the High Court for 10 years, with an impressive record as judicial officer and was a very senior member of the High Court. On the basis of this, the case was considered grave. The problem with this application of reputation is that it opens up defamation law to possible abuse by public officials and figures (Media Legal Defence Initiative 2015).

The Zimbabwean judiciary has not been shy to pronounce that the reputation of public figures and officials is highly protected. In Gonese v. Zhakata and Beta, 2004 Judge Hungwe stated that impugning the reputation of a member of parliament without cause invites punitive damages. In this case, the plaintiff had sued the defendants for publishing a story that the plaintiff had lied about how he spent public donations and had spent some of the money on women and beer. The judge held that an MP “commands and deserves respect as he is a representative of the people in parliament”. Arguably in line with this notion, the Zimbabwean judiciary tolerates defamation by politicians against politicians and not by newspapers. In Makova v. Masvingo Mirror (PVT) Limited & Others, 2012 the defendants were sued for publishing a story accusing the plaintiff (an MP) of being a terrorist, causing unrest, perverting democracy, being greedy and stupid in one constituency. Finding for the plaintiff, the judge held that even though politicians should develop a thick skin and learn to deal with defamatory remarks “in casu the court is not in my view, dealing with a petty political dispute. This is a matter involving defamation of a politician by a newspaper”. Arguably, this shows how newspapers are expected to treat politicians with respect, which makes it difficult for newspapers to engage in watchdog journalism, which will be in line with the checking value (Blasi 1977) to guard against abuse of political office by leaders. Subsequently, this makes it challenging to exercise ubuntu’s liberation journalism (Blankenberg 1999) that would call for a critique of leaders for fear of being charged with being disrespectful to politicians by defaming them. In addition, the idea of punitive damages raised here also goes against the ubuntu concept of non-retributive punishment in favour of reconciliation (Metz 2007, 2015). This is not to say that the defamed should not be compensated. It is better to do this in a non-punitive way, for as Feltoe (2018) argues, financial punishments can have a chilling effect on the press, worse so when they are punitive. Media Legal Defence Initiative (2015) argues that an apology and a correction could be enough in dealing with defamation.

Furthermore, the Zimbabwean judiciary differs from other positions that debate matters of public interest should be robust, recognising that such debate can produce speech critical of public officials and figures (Franklin et al. 2016). Instead, the Zimbabwean judiciary emphasises that criticisms against public figures will be protected provided they are “kept within the bounds of moderation, and do not impute improper, immoral or otherwise dishonorable conduct to the plaintiff” (see Garwe supra). The challenge here might be in reconciling this idea of moderation and ubuntu’s liberation journalism, especially if journalists are to emphasise standing with those in need, that is, the downtrodden.

Even procedurally, the Zimbabwean requirement that in defamation cases the plaintiff must prove truth cause a chilling effect. The US’s Supreme Court has taken the position that public officials have the burden to show a high level of fault in order to successfully sue for defamation and claim damages. In New York Times Co. v. Sullivan 1964, it was argued that putting the burden of proof on the press has a potential chilling effect on the press. Thus, in the USA, it is up to the plaintiff to prove actual malice, as well as to prove falsity, although the defendant may prove truth as a defence. Even though the ECtHR has not been persuaded with burdening the complainant with proving truth, they have widened permissible limits to government criticism (Media Legal Defence Initiative 2015). The problem of burdening the defendant with proving the truth is evidenced by Mnangagwa v. Alpha Media and Muleya, 2013, where the court ruled in favour of the plaintiff. The plaintiff had sued the defendants for alleging that he was plotting to unseat former Zimbabwe president Robert Mugabe. At the time, this would have been something difficult to prove, but fast forward to 2017, the plaintiff removed Robert Mugabe in a military coup. In many respects, this shows how defamation, even civil defamation, may still work against freedom of expression which is so much important under ubuntu’s liberation journalism.

Conclusion

This paper has attempted to demonstrate how in its current state, the law of defamation is still in favour of elite reputation. As far as false news is concerned, the values of marketplace of ideas, individual self-fulfilment and self-governance have largely been protected. However, issues arise when it comes to defamation, where the reputation of elites is highly protected. This is demonstrated by such arguments that state that the higher one’s reputation is, the deeper the gravity of the defamation case. Such cases can also attract punitive damages. Furthermore, the courts have often ruled that members of parliament must be treated with respect as they represent their respective constituencies. The implication of this is that it may be challenging to practice either watchdog journalism based in the liberal normative tradition or liberation journalism based on ubuntu values.

It is this paper’s argument that subordinating freedom of expression to human dignity is likely to jeopardise community interests in favour of elite reputation and privacy interests. This comes from the limitation on media’s roles as the watchdog or liberation journalism players. As demonstrated using different cases from other jurisdictions, the danger in subordinating freedom of expression to human dignity is that the press runs the risk of being limited in their watchdog roles. This is because values such as marketplace of ideas, checking value and individual autonomy which have been recognised by the Zimbabwean judiciary might stop receiving the same protection as they have done previously. Thus, it is this paper’s argument that subordinating freedom of expression to human dignity is reversing Zimbabwe’s freedom of expression to pre-1980. This will mean, as far as freedom of expression is concerned, that the new constitution might turn out to be worse than the previous one.

Acknowledgements

The author would like to thank the two anonymous reviewers, who critically read the manuscript and provided valuable feedback. The author would also wish to thank Professor Jane Kirtley who helped guide the project by providing critical feedback and invaluable advice along the process.

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The author(s) received no financial support for the research, authorship, and/or publication of this article.