Concourt strikes down sections of Statute law

Minister Mnangagwa

Minister Mnangagwa

Zvamaida Murwira Senior Reporter
THE Constitutional Court yesterday ruled that sections of the Criminal Law Codification and Reform Act criminalising the undermining of the authority of the President and communicating falsehoods must be struck off as they are unconstitutional.
The nine-member full bench invited Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa to show cause on November 20 if he wishes on why the provisions should not be struck down from the country’s legal statutes.

The sections ruled unconstitutional were Section 31 (a) (iii) which criminalises publishing or communicating false statements prejudicial to the State and Section 33 (a) (ii) which criminalises undermining the authority of the President.

The ruling by the court followed an appeal by Zimbabwe Independent journalists Constantine Chimakure and Vincent Kahiya on one hand and artist Owen Maseko, all of whom had been charged under the Criminal Code.

Chimakure and Kahiya were charged under Section 31 for allegedly publishing or communicating false statement prejudicial to the State, while Maseko was charged under Section 33 for allegedly undermining the authority of the President through his paintings.

The full bench handed a unanimous decision with respect to Zimbabwe Independent journalists, while the order was given by consent of both parties with respect to Maseko’s case.

“It has not been shown that S31(a)(iii) of the Criminal Code is not in contravention of S20 (1) of the Constitution.
“Section 24 (5) of the Constitution applies. The Minister of Justice, Legal and Parliamentary Affairs is hereby called upon to appear if he so wishes before the Supreme Court on 20 November 2013 at 9:30am to show cause why S 31(a)(iii) of the Criminal Code should not be declared to be in contravention of S20(1) of the Constitution,” read the judgement prepared by Deputy Chief Justice Luke Malaba.

Chief Justice Godfrey Chidyausiku, Justices Vernanda Ziyambi, Paddington Garwe and Maphios Cheda concurred.
In the Maseko case, Deputy Chief Justice Malaba handed down thejudgement after nine judges heard the case where November 20 was given as the date when Minister Mnangagwa could come to show cause why the provisions should not be struck down.

The case was heard before Chief Justice Chidyausiku, Garwe, Ziyambi, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Ann-Mary Gowora and Elizabeth Gwaunza.

Law officer Mr Chris Mutangadura conceded that the section under which Maseko had been charged was not consistent with the old Constitution, the legal statute that prevailed at the commission of the alleged offence.

Mr Mutangadura had earlier on raised concern, saying there was need for caution in handling the case because several other people had been charged and jailed under the same Section.

In thejudgement of Chimakure and Kahiya, Justice Malaba said the maximum penalty of 20 years imposed by the Section was disproportionate with the offence.

He said the United Nations Human Rights Commission abhorred criminalisation of false news and have gone to the extend ofrecommending the scrapping of the statutes because they “unduly limit the exercise of freedom of opinion and expression.”

“The chilling effect of the disproportionate threat of the period of the maximum penalty of imprisonment to which a person convicted of the offence is liable harms the operations of a free media,” said Justice Malaba.

“By authorising the discretionary imposition of a maximum punishment of 20 years imprisonment for offences amounting to attempts, S31(a)(iii) of the Criminal Code has a serious inhibiting effect on the exercise of the right to freely criticise public institutions in the performance of their functions.”

Justice Malaba said it was a fundamental principle of the protection of freedom of expression that the State should not penalise people who make false statements in good faith about a matter of public concern.

“The principle that there be an element of knowledge of falsity of the statement published or communicated proved by the prosecution is based on the assumption that journalists, in particular, are responsible professional people.

“They value freedom of expression and its importance to society such that they would in most cases not deliberately propagate falsehoods. A reporter’s reputation depends on the quality of information he or she provides.”

Chimakure and Kahiya were charged after they published a storytitled “Activists’ abductors named,” where in the story senior police officials were identified as having abducted MDC-T activists and Zimbabwe Peace Project director Jestina Mukoko in 2009.

Maseko was represented by Advocate Zvikomborero Chadambuka, instructed by Jeremiah Bhamu from the Zimbabwe Lawyers for Human Rights.

Maseko was seeking to assert the right of artists to free expression as he felt that they were being breached by some sections of the Criminal Law (Codification and Reform) Act.

This was after he was arrested for making paintings reminiscent of the dissident menace that afflicted the Matabeleland and Midlands provinces soon after independence.

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  • Irikidzayi

    A surprising turn of of events in our courts, I wonder what prompted the changes? A few days ago the Minister of Information appeared to preempt this judgement and now it has happened.

    • simple

      Go and read Animal Farm .

    • ziso

      Did u read? Its in pursuance of the court case and it is common place in the practice of law that judgements can influence decisions on amendments.

  • Negomo Farai Makope

    WOW IF THE ART WAS GOOD ART THEN WE WOULD BE TALKING OF SOMETHING AND THESE JUDGES ARE NOW PLAYING INTO THE ARTIST’S HANDS WHO IS NOT EVEN A GOOD ARTISTS. WHY THEY ARE ARRESTED HIM, WE HAVE NO IDEA BECOZ HE IS NOT A GOOD ARTISTS WHO JUST THOUGHT OF SOMETHING CONTROVERCIAL TO PROP UP HIS NAME AND HERE THEY ARE EDUCATED JUDGES SEATING INSTEAD OF LOOKING AT GOOD CASES. SHAME THE INTERNATIONAL COMMUNITY WHO ALWAYS WANT TO FIND US ON THE WRONG SIDE OF DA FENCE AND LET THE CON ARTISTS GO.

  • ZakaEast

    Events in Zim

  • Tsvimbonyoro

    Does that mean you can no longer be arrested for recycling old Presidential posters in the bathroom?

    • Mukotami

      Thats a truly serious question right there!!!

  • MukarangawekuMberengwa

    Ndirikuona tirikuenda kuZimbabwe itsva zvokwadi Herald kunyorawo zvakadai nana Mutongi gava kupawo mutongo wakadaro . Kune zvechimwe chimutemo chinoshandiswa nanaTomana section 121 of the same act chekuti munhu akapiwa bail out Tomana namachinda ake voroverera hoko panhongonya vopikisa bail . Munhu apiwa bail out hwohwa Tomana vaita invoke section 121 of Criminal Codificaton & reform act kuti vanhu vaorere muremand chitirongo

  • harare

    well done court very well done, free zimbabwe ka one

  • Zeno

    I am not a politician, neither am I a social scientist, just
    a poor bean counter (accountant). I wonder why in Africa the opposition is
    always alienated and hated, instead of being a good source of checks and
    balances for an effective society

    Here in Africa, we don’t believe we can be wrong if we are
    elected. Once in power, we’re right and none should say a thing. I have observed
    that we then invest a large part of our time and money to counter any
    opposition not focusing on election promises. Election time is about undressing
    the opposition, calling them all sorts of names. Sadly it makes a certain part
    of the population believe in these chants and brew a lot of unnecessary hate.

    With the hate, rationale debate on issues in thrown away.
    Look at us, before anyone comments on what MRT said or says one has to call him
    with some name: puppet, chematama, chekushata etc. Even those of you who are
    clever enough to help the country can’t contribute positively. Were divided and
    our politicians fan that so that they remain in power.

    If I look at our regional politics, countries are governed
    by basically conservatives or liberals. In Zim, ZANU PF is conservative in
    approach and always believes in looking within and republicanisation of
    resources. On the other side, MDC believes in a more liberal approach to things
    together with private provision of goods and services. All approaches work,
    however each approach works best in different cycles of the economy and social
    development. Now without a clear effort by politicians to allow variation and a
    wider frame of thinking but the focus on power retention, we remain backward
    and inevitably poor.

    Failure to allow some sort of blending or cyclical renewal
    of such approaches makes a country backward and leaves a nation with a lot of
    gripe. Sometimes it brews opportunity for banditry or civil strife. We are past
    common goal revolutions; we’re now in a social development phase which involves
    multidimensional thinking. Unilateralism does not work in any real or mock
    democracy, only unless there is no opposition or it’s a one party state. One step
    towards enforcing it will only take you a hundred steps back on development.

    I wish to see our politicians debating on issues of
    development and implementing policies so that our lives change. I wish for a time were national events are
    taken as national events rather than just party X events. We need a real union
    and peace together with an atmosphere to freely critic policies and programs to
    get the best out of our leaders. Then and only then will we see real tangible
    development in our country. There will be a possibility that with such union
    and social contract, it will be difficult if not impossible for foreign
    penetration in our nation agenda.

  • fed up long ago

    Now that the elections are over, and the opposition has been discarded, it is a covenient time for the Court to assume a cloak of impartiality, so that you can all believe that teh system works.Its amazing how the Court in Zimbabwe always follows the flag

  • inizvangu

    Better late than never.Tange tongonyara kwese kwataenda. Mitemo yakadai inotinyadzisa.Mukuru wenyika should be open to criticism.Respect is earned through one’s works kwete fear.