HARARE – As the Daily News celebrated six years yesterday, since it came back to the market on March 18, 2011, respected legal eye Alex Magaisa has described the influential newspaper’s closure by the government in September 2003 as “not legally sound”.
Writing on his Big Saturday Read blog, the University of Kent law lecturer also said the most overwhelming impression under former Chief Justice Godfrey Chidyausiku’s leadership of the bench was that the judiciary had been “subject to capture by the executive arm of the State”.
He said few cases also captured the legacy of the Chidyausiku era’s restrictive approach to human rights as the Daily News’ case, which ushered the “Dirty Hands doctrine” into Zimbabwe’s human rights jurisprudence.
“The formal name of the case is Associated Newspapers of Zimbabwe (Pvt) Ltd v minister for Information and Publicity in the President’s Office and Others 2004 (2) SA 602 (ZS). The central party to this case was the Daily News, the biggest and most vibrant private newspaper operating at the time.
“The government had just introduced the Access to Information and Protection of Privacy Act (Aippa), a notorious piece of legislation widely condemned for alleged restrictions on media freedom.
“ANZ, the publishers of the Daily News did not register with the Media and Information Commission, the public regulator set up under Aippa to register media houses and journalists. ANZ then approached the Supreme Court challenging the constitutionality of provisions of Aippa.
“The Chidyausiku court refused to give audience to ANZ on the ground that having not complied with Aippa, it had dirty hands, hence the Dirty Hands doctrine,” Magaisa said.
Chidyausiku had written that, “This court is a court of law and, as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards”.
“The implication of this was that a litigant wishing to challenge the constitutionality of legislation had to comply first in order to come to court with clean hands. This did not make sense where compliance would make the constitutional challenge academic.
“It was the first time that the Supreme Court brought the Dirty Hands doctrine, a doctrine of equity into the arena of human rights with the sole purpose of denying an applicant the right to be heard. The court was more concerned with procedural niceties as opposed to the real substance of the issue, namely, whether or not Aippa was constitutional.
“This decision ultimately led to the closure of the Daily News. A few days after the judgment, ANZ submitted an application for registration but it was turned down by the MIC. There were subsequent legal wrangles, which eventually brought the challenge back to the Supreme Court.
“Although some provisions were found to be unconstitutional, key provisions were upheld. The Daily News only returned to the streets years later after the inclusive government was established and media freedoms were relaxed,” Magaisa observed.
“The government had achieved its purpose of banning its most critical voice and the Chidyausiku court had played its part. Even though Chidyausiku tried to defend his decision, most observers saw the treatment of ANZ as political punishment for the Daily News,” he added.
“Chidyausiku argued in the second case that ANZ had not been barred from approaching the court but that it was required to submit itself to the law first.
“His view was that ANZ had acted in disdain of the law when it did not register and that this was unacceptable. He denied that the applicant was being punished for its editorial inclination. ‘The applicant’s contention that it is being victimised because of its editorial inclination is totally without foundation,’ he wrote.
“‘The issue is not the contents or slant of the applicant’s newspapers. There are several mass media service providers that are as critical of the Government and the establishment as the applicant’s newspapers. They registered and are operational.
“‘The issue, as far as this court is concerned, is one of compliance with the law. Nothing more and nothing less. Nobody is above the law and that includes the applicant’.
“He pointed out that ANZ had a number of options before it after Aippa became law: it could have complied and challenged the legislation’s unconstitutionality as other media companies had done or it could have stopped publishing while making a challenge.
“Chidyausiku was of the view that the applicant had been arrogant and created problems for itself by not registering. This seems to have annoyed him, leading to him adopting a punitive stance against ANZ. There is no doubt from this judgment that he believed his refusal to entertain ANZ was justified,” Magaisa wrote further.
“Away from the political dimensions, the decision was not legally sound. In a critique of the judgment at the time, I argued that the Court had improperly extended a doctrine normally applied to equity into the field of constitutional rights where greater flexibility was required.
“Using the Dirty Hands doctrine to deny audience to a litigant seeking protection of constitutional rights could have a devastating effect on the enjoyment of fundamental rights and freedoms.
“Significantly, however, the new Constitution adopted in 2013 reverses the effect of the Chidyausiku decision. A provision of the Declaration of Rights states in clear terms that the fact that a person has not complied with a law is not a ground to bar that person from pursuing constitutional rights litigation.
“In other words, contrary to the Chidyausiku judgment in the ANZ case in 2003, the Dirty Hands doctrine is no longer part of Zimbabwe’s human rights jurisprudence.
“If the ANZ case were to be decided under the new Constitution, the Court would be compelled to hear ANZ’s application notwithstanding the so-called dirty hands.
“Overall, while the constitutional changes have removed the Dirty Hands doctrine from the human rights arena, the fact that Chief Justice Chidyausiku was behind its introduction remains one of the darker parts of his legacy of a restrictive approach to human rights,” Magaisa concluded.