Insult law still remains in force

HARARE - While a number of citizens were arrested and dragged to the courts after being accused of undermining the authority of or insulting former President Robert Mugabe, even as he is gone, that law is still intact.

Under Section 33 of the Criminal Law politicians, activists, students and ordinary citizens have had to endure jail time in Remand Prison as there was no provision for bail at initial appearances at the lower courts.

People like ex-war vets leaders Jabulani Sibanda, Victor Matemadanda, Douglas Mahiya, Francis Nhando, businessman Energy Mutodi, cleric Phillip Mugadza, Evan Mawarire, Acie Lumumba and many others have argued the constitutionality of such charges in a country that has a constitution which guarantees freedom of expression.

Jabulani Sibanda

Jabulani Sibanda - former war veterans leader

Following Mugabe’s resignation there was celebration across all divide with most of them declaring that they were free and had been liberated from further prosecution.

However, legal experts mostly associated with Zimbabwe Lawyers for Human Rights who have advocated for people charged under that section have said the game is not yet over because section 33 still criminalises insulting the office of the president and not the person of the president.

In that vein, calls have been made for the new government to ensure that the Constitution overrides any other law on the land.

“The offence was against the office of the president and not the person of the president so nothing really has changed whether or not Mugabe has resigned the law will remain as it is,” lawyer Jeremiah Bamu said.

“You need to understand that in the Owen Maseko case the Supreme Court had come to the conclusion that, that law is unconstitutional and the minister of Justice had to show cause why it must be struck down tactfully then minister of Justice Emmerson Mnangagwa ensured that the charge must be withdrawn so the Supreme Court did not make a final determination but at face value it concluded that the law was unconstitutional.”

Maseko had been charged with undermining Mugabe’s authority after an arts exhibition that portrayed the Gukurahundi massacre.

“If a law was declared unconstitutional under the old constitution it remains unconstitutional in the new Constitution. The problem we are having now is whenever such cases arise and we refer them to the Constitutional Court, it has always avoided a binding determination on that issue and we are uncertain whether the law has been declared unconstitutional or not,” added Bamu.

Another Human Rights lawyer Kudazi Kadzere echoed similar sentiments and urged the government to expunge such draconian laws from statute books for democracy to prevail.

“That charge remains as criminal on the statute books and the fact that Mugabe is no longer the president does not mean the charge falls away because a crime is a crime as at the time that it is committed,” Kadzere said.

“…I do however feel that the criminal offence of undermining the authority of the president is unconstitutional and in future we hope that those criminal offences are removed from statute books because they stifle democracy.”

There has, however, been a striking failure by the State to prove the cases, as the law has proved to be constitutionally defective and impedes on the people’s right to freedom of expression.

When Lumumba’s case was brought before the Constitutional Court, the State stated that it was withdrawing the criminal case against the former Zanu PF youth leader on the basis that there is a set precedence in another case involving MDC secretary general Douglas Mwonzora.

Like many, Mwonzora had attacked Mugabe, calling him a “goblin” during a Nyanga rally. But the case was left without legs to stand on after the court asked the State to give a thorough description of a goblin and how that was linked to the nonagenarian leader.

The State could not explain what a goblin is; further pushing the court to ask if the prosecutor believed Mugabe was a goblin.

That was the end of the story as the answer was in the negative, with the court making it clear that these were political statements.

Mwonzora had approached the Constitutional Court, challenging the constitutionality of the charges, arguing that the State was infringing upon his right to freedom of expression.

But this set the tone for the determination of the cases that were to follow including the Lumumba case — but could not stop people from being dragged to court for mere bar talks and jests.

“Hope the police will reform and avoid being involved in politics. The constitution gives rights and their limitations where necessary.

“The police were just working as commiserate of Mugabe. Some laws need reform but some just need human mind-set reform,” ZLHR’s Gift Mtisi said.