BY DR MASIMBA MAVAZA
MDC Alliance national spokesperson, Advocate Fadzayi Mahere, Job Sikhala and Hopewell Chin’ono were arrested for peddling falsehoods. They all have been arrested and charged with violating Section 31 of the Criminal Code. The three are being tried separately maybe because they committed their offences separately.
Mahere is facing charges of peddling falsehoods following a tweet that alleged police had beaten an infant to death while enforcing Covid-19 lockdown rules last week. The information was later found to be false
In detail charges against advocate Mahere is sec 31 of Criminal Code ‘Publishing or communicating false statements prejudicial to the state’ she is accused of – sec 31(a)(i) publishing or communicating a statement intending or realising risk or possibility of inciting or promoting public order or public violence or endangering public safety, with alternative charge, sec 31(a)(iii) – undermining public confidence in law enforcement agency.”
The social media once again was awash with theories and turning the whole case into politics. Mahere’s party the MDC Alliance made a statement as usual.
“MDC Alliance strongly condemns the continued abuse of national justice institutions through the arrests of Vice Chairman Hon. Job Sikhala, Party Spokesperson Advocate Fadzayi Mahere, Harare Mayor His Worship Jacob Mafume, investigative journalist Hopewell Chin’ono, student leader Allan Moyo and wrongly convicted prisoners: Last Maingehama and Tungamirirai Madzokere together with other political prisoners who are continuously being persecuted by the State.
“The Zanu PF government is abusing state institutions by continuously persecuting opposition leaders and human rights defenders. We reiterate the people’s President Advocate Nelson Chamisa’s sentiments that the arrest pertaining to non-existing crimes represents dictatorial rule, severe abuse of power and an attack on the rule of law. Persecution through prosecution reflects authoritarian consolidation rather than democratization,” said a statement. The MDC Alliance went on to say
“It must be highlighted that this recent spate of arrests targeting Hon. Job Sikhala, Advocate Fadzayi Mahere and Hopewell Chin’ono is illegal as is it premised on charges that were long declared unconstitutional by the highest court in Zimbabwe. It is pure law-fare targeted to terminally bleed the democratic contingent considered to be holding different views from ZANU PF.”
The whole argument is not whether the trio did spread falsehoods. The trio are not denying this charge all they are saying is the law chosen by the police was expunged from the code by the Supreme Court.
The Zimbabwean Supreme Court then sitting as a Constitutional Court found that Section 31(a)(iii) of the Criminal Law Codification Reform Act violated 24(5) of the former Constitution of Zimbabwe. The Minister did not submit an affidavit arguing that the Act was justifiable, despite its inference with citizen’s right, and, instead submitted a challenge to the provision itself, which was later withdrawn. Given the Minister’s failure to submit an affidavit on this matter, the Court was not required to consider the Minister’s views, and it held that the Act interfered with the right to freedom of expression.
For us to understand the whole argument we should acquaint ourselves with the case where the law in question is said to have been expunged.
Constantine Chimakure, a former editor of the Zimbabwe Independent, and Vincent Kahiya, the group editor and chief, are Zimbabwean journalists. These two were prosecuted for publishing a story, which stated that intelligence and police officials were involved in the abduction of opposition and human rights activists in 2008.
The provision in question is Section 31 (a) (iii) of the Criminal Law Codification Reform Act. Section 31 makes the reporting of false news a crime punishable with a high fine and a prison sentence of up to twenty years. To fall within this provision, the news must be that which would undermine public confidence in the uniformed forces. We further need to look at the decision on the round. In October 2013, pursuant to the former Constitution, the Constitutional Court of Zimbabwe issued a rule nisi. Specifically, the Constitutional Court of Zimbabwe issued a rule nisi that Criminal Law Codification and Reform Act’s Section 31(a)(iii) infringed upon the right to freedom of expression. Under Section 24(5) of the Zimbabwe’s former Constitution, the Minister of Justice, Legal and Parliamentary Affairs (Minister) has the right to persuade the court that Section 31(a)(iii) was justifiable, despite its impact on the right to freedom of expression.
If the Minister is able to show cause, the rule will be “declared to be ultra vires 20(1) of the former Constitution and accordingly invalid.” The Minister did not exercise this right. Rather, the Minister submitted a document arguing that Section 31(a)(iii) did not infringe upon the right to freedom of expression, instead of arguing for and giving reasons why the law should remain despite its infringement upon this right.
The Minister did not attempt to argue that Section 31(a)(iii) was justifiable or provide factors for the court to consider. The Court noted, however, that 24(5)’s purpose is not to give the Minister, a non-party, the power to review the court’s decisions. Later, a representative of the Minister informed the Court that the Minister would no longer oppose the rule’s confirmation. Accordingly, the Court ordered that 31(a)(iii) of the Act “was in contravention of §20(1) of the former Constitution and therefore void.” Additionally, the Court ordered that the respondent pay for the application’s costs and costs for the rule’s confirmation.
On January 15, 2014 the Minister’s representation indicated that the Minister was no longer wishing to oppose the confirmation of the rule nisi and the order of the court was reversed. The Court ordered that Section 31 (a)(iii) was void since it was in contravention of Section 20(1). Lastly, the Minister was ordered to pay reparations.
So the court clearly declared that section 31(a) was void since it contravened the constitution. The Court struck down a section of the Criminal Law (Codification and Reform) Act which made defamation a criminal offence. The, Justice Luke Malaba said the section breached freedom of expression. The court found that the applicants had discharged the onus of showing that Section 31 of the Criminal Code was not reasonably justifiable in a democratic society for the protection of the public interest in public order or public safety.”
“It is ordered that Section 31(a)(iii) of the Criminal (Codification and Reform) Act was in contravention of Section 20(1) of the former Constitution and therefore void.”
All Supreme Court judges agreed with Mr. Malaba’s ruling.
Section 31 of the Criminal Law Act prohibits the publication or communication of false statements with the intention or risk of undermining confidence in the law enforcement agency, Prison Service or Defense Forces of Zimbabwe. The removal of the law then only removed the burden of criminal prosecution but Journalists will still be sued under civil defamation, so they are still expected to act responsibly, to write accurate stories and verify facts.
Obviously the three did break the law only that the law has been removed. You cannot break what is not there.
The argument forwarded by the prosecutor justifying the charges was laughable. He argued that the court’s judgement pertained to the amended constitution. This is not a solid argument. What was removed was section 31 not the constitution. The legislature did not seek to bring back the law. This none action by the state meant that the ruling by the Constitutional court was not further challenged so it stands.
There is no reasonable reason whatsoever to redirect the dead law and put it into action.
As we will all agree law is an ass any body can ride. The problem we have here is that the accused persons are arguing politics. This arrest was not political. It was criminal and there was no politics in this case.
When an accused person is arrested he has a right to challenge the law to face his accuser to argue anything which can remove her from any liability. The fact that the law seems nonexistent does not prohibit the law to take its course. The arrests are genuine not punitive. The court will decide on the case and weigh the spirit of the law.
As much as I want this law to be back as of now the chances of these three criminals are high. But should they be released it does not mean that the arrest was political.
The police do not arrest when they have a case which is clear cut. It is the duty of the police to arrest you on the belief that a crime has been committed.
In Zimbabwe people are innocent until proven guilty. So there is nothing wrong in arresting innocent people. The police approach you with an allegation which will need to be proved in court. Every person arrested has his own day in court. The tragedy is that the accused persons have their ulterior motive so they provoke the law enforcement so that they can be arrested and push on an agenda that there is no rule of law in Zimbabwe. Their aim is vilify the nation for the only reason that they get donations and payment from their handlers.
It is the accused persons who are playing politics with justice. Their arrests are not political and it is wrong to accuse ZANU PF for their own faults.
ZANU PF does not control the police it does not control the courts. The fact that criminals are found in the opposition camp must not stop the police from arresting them.
The problem surrounding today’s case is that the state is still in a belief that the court erred in ruling in favour of the journalists.
There was an argument that the court failed to properly assess the proportionality of Section 31 of the Code, which criminalised publishing or communicating false statements prejudicial to the State. At that time the state believed that the honourable court failed to adopt a proper approach in trying to assess the proportionality of Section 31 of the Code to Section 20(1) of the Constitution of Zimbabwe, thereby wrongly making a finding that the impugned provision is overboard,”
“While the court was attempting to satisfy the test known in deciding whether or not a law is reasonably justifiable in a democratic society, the study of essential elements of the offences with a view to assess its breadth led the court to omit the first fundamental criteria before adopting the proportionality test.”
These were arguments which never saw a day light in court and unfortunately these are the arguments the state is trying to forward again today. The weak argument does not become stronger because you have repeated it.
It is a shame that strictly legally speaking this law remains expunged. There is nowhere in law where this law was resuscitated. It remains expunged and indeed it is. The Constitutional Court removed from the statutes Section 31 (a) (iii) of the Criminal Law Codification Reform Act, which criminalises the publication of false statements undermining public confidence in the uniformed forces.
The minister of justice must sit down and seek to replace the expunged law. It can not be replaced by putting it in court it will only embarrass the system.
Knowing how irresponsible the media is and how lies can corse despondency the minister should have replaced that law by now.
Unfortunately for the culprits might be release at the end of the trial. It pains every Zimbabwean to see Hopeless Chin’ono back on the Twitter and lying again. We urgently need this grey area to be resolved now.