Prescribed by law

If national security is to be used to limit freedom of expression, the restriction must not only address a legitimate national security interest but must also be prescribed by law. The exact meaning of this has been an issue in several national security-related cases.

In Chavunduka and Choto v. Minister of Home Affairs & Attorney General, the Zimbabwe Supreme Court considered the case of two journalists who had been charged with publishing false news on the strength of an article reporting that an attempted military coup had taken place. The Court found that false news was protected by the constitutional guarantee of freedom of expression stating that “[p]lainly embraced and underscoring the essential nature of freedom of expression are statements, opinions and beliefs regarded by the majority as false.”(1)

The offence of publishing false news in the Zimbabwean criminal code was vague and over-inclusive. It included statements that “might be likely” to cause “fear, alarm or despondency” — without any requirement to demonstrate that they actually did so. In any event, as the Court pointed out: “almost anything that is newsworthy is likely to cause, to some degree at least, in a section of the public or a single person, one or other of these subjective emotions.”(2)

The word “false” was vague, since it included any statement that was inaccurate, as well as a deliberate lie. The law did not require it to be proved that the defendant knew the statement was false. The Court then went on to find the provision unconstitutional on necessity grounds as well.