War veteran Douglas Mahiya, who remains in police custody, is being charged under section 33 of the Criminal Code, the offence being one of allegedly undermining the authority of or insulting the President.
The charges arise from statements allegedly made by Mahiya between April and July 2016. Mahiya is the spokesperson of the Zimbabwe National War Veterans Association, which on 21 July 2016, issued an historic communique, which was highly critical of President Mugabe’s leadership.
It is this communique, and events around it, which prompted the arrest of Mahiya. As President Mugabe increasingly faces serious criticism from members of the public who are frustrated with his leadership on grounds that it has brought much suffering, it is likely that this offence will be the government’s weapon of choice against critics.
It is important, therefore, to analyse the validity of this law against the standard of the Constitution of Zimbabwe, which is the supreme law of the land. It is my contention that section 33 of the Criminal Code is unconstitutional. The purpose of this article is to articulate the reasons why this provision falls short of the highest law in the country.
First, however, it is important to set out the key elements of section 33.
Section 33 of the Criminal Code
In a nutshell section 33 sets out a criminal offence for intentionally making a public statement which undermines or insults the President, either in person or in his official capacity.
The statement may be an act or gesture and it may be published in print or electronic form. It must be made with intention or realisation that there exists “a real risk or possibility that the statement is false and may engender feelings of hostility towards or cause hatred, contempt or ridicule of the President”.
Also criminalised is the making of “any abusive, indecent or obscene statement about or concerning the President” – this is the presidential insult provision.
The maximum sentence for this offence is the combination of a fine not exceeding level 6 and imprisonment for up to one year.
An outdated law
Commenting on this offence, renowned academic and arguably the most eminent authority on criminal law in Zimbabwe, Professor Geoff Feltoe of the University of Zimbabwe, rightly points out in his commentary on the Criminal Code that while this offence may be appropriate for protecting the office of a ceremonial president, it is inappropriate where it seeks to protect an executive president who is an active politician and is therefore, not beyond criticism. When Zimbabwe changed from the system of the ceremonial President in 1987, to the current system of the executive Presidency, the rules and customs that apply to the ceremonial presidency were carried over without serious scrutiny, into the era of the executive presidency. In short, section 33 is the codified version of the common law rule which was more appropriately suited to the office of the ceremonial, but not executive President. Put simply, the law is ill-suited for the current environment.
Professor Feltoe rightly argues that the problem with this offence is that it can and is usually deployed to stifle criticism of an executive president. The protections that a ceremonial head of state receives are a trade-off for the custom that he or she does not get involved in active politics. However, an executive President is an active politician who routinely trades arguments with and exchanges occasional political jibes against opponents, especially during election periods. It is inherently unfair for a legal system to give protection to a President who freely criticises and insults competitors whenever opportunity permits.
Indeed, the reality in Zimbabwe is that President Mugabe has often publicly insulted his political rivals and other critics and yet the legal system has often descended heavily upon those who allegedly insult him. If insulting President Mugabe undermines the office of the President, surely it must be true also that he undermines the office of the President when he routinely insults his political competitors and critics. If the President is not committing an offence by issuing insults against competitors and critics, surely his critics and competitors cannot be guilty when they do the same – after all rules of the game must apply to everyone. A law that fails to treat all persons equally falls short of the standards of the rights to equal protection of the law, and against non-discrimination, which are protected under section 56 of the Constitution. As long as a President is an active politician, section 33 is a misplaced law which has no place in the legal system.
Violation of the right to protection of the law
It is my contention that section 33 is unreasonable because of its broad character and vagueness which leaves any critic of the President at risk and unsure of whether or not they are committing an offence. For that reason, it is a violation of section 56(1) which guarantees the right to protection of the law. The Constitutional Court has already set an important precedent in 2000 in the case of Chavhunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (SC) when it struck down a provision of the Law and Order (Maintenance) Act (now repealed) which made it an offence to publish a false statement likely to cause fear, alarm and despondency among the public. The Court held in that case that the provision was unconstitutional because it was too wide and vague. The same argument would apply to section 33 on the basis that it is also too broad and vague, as I demonstrate in the discussion below. The fundamental right to protection of the law requires that if an offence is imposed by statute, it must be clear and unambiguous. It must be able to guide a person so that they know before they make a statement whether or not they are committing an offence. My view is that section 33 does not do that. Let us now look at what section 33 criminalizes.
Section 33: Undermining the authority of the President
It criminalises the making of a public statement “with the knowledge or realising that there is a real risk or possibility that the statement is false and that it may— (i) engender feelings of hostility towards; or (ii) cause hatred, contempt or ridicule of; the President …”.
Making a statement with “knowledge that the statement is false” shows subjective intention is a critical element of the offence and that could be said to be easier to determine. However, what does making a public statement “realising there is a real risk or possibility that the statement is false” actually mean? What is the measure of “real risk or possibility” which results in criminal liability? It suggests that there are other possibilities which may not attract criminal liability, but what exactly are they?
Looked at another way, a person may believe, but would not be sure, that a statement regarding the President is true. But there is still the possibility that it may be false. If he utters or repeats the statement, does it make him liable under section 33? When it is sufficiently a “real risk or possibility” that the statement is false in order to attract criminal liability? This is unclear and vague, and in capable of guiding the maker of statement before he makes it.
The problems with section 33 are best illustrated by a quotation from a case decided many years ago by the European Court of Human Rights. In the The Sunday Times v The United Kingdom (1979) 2 ECHR 245 the Court stated:
“… It is crucial, therefore that the law must be… formulated with sufficient precision to enable a person to regulate his conduct. He or she must know with reasonable certainty what the law is and what actions are in danger of breaching the law … An inadequate demarcation of an area of risk affords neither notice to a person of conduct which is potentially criminal, nor an appropriate limitation upon the discretion of authorities seeking to enforce the provision. It offers no basis for the court to define limits of conduct”
This is precisely why the words “real risk or possibility that the statement is false” are a poor, vague and inadequate standard to guide conduct and renders the provision unconstitutional. As the Supreme Court helpfully pointed out in the Chavhunduka case in 2000, statutory vagueness cannot be allowed where freedom of expression is at issue. Instead, the law must be precise enough to enable a person to regulate his conduct, knowing in advance whether his statement would violate the law. In that case, having analysed it, the Court came to the conclusion that the relevant provision was far too wide and vague and was therefore unconstitutional.
Section 33: Insulting the President
As for the offence of insulting the President, similarly, at what point does the maker of a statement know that he is violating the law – is it when he makes the statement or when the President says he feels insulted? What words are deemed to be insulting or abusive enough to attract a criminal charge? Or does the provision cover all and any insults, even words that are commonplace in society? If that is the case, section 33 is a provision that is likely to make criminals out of most, if not all, ordinary people. That cannot be a reasonable law. As the Supreme Court stated in the Chavhunduka case, an offence which is too wide and vague in its meaning and effect is inconsistent with generally accepted values of a democratic society. This is precisely what section 33 does: it has the potential to make criminals out of most ordinary people who criticize the President, something that they are allowed to do in a democracy. Such an offence is not reasonably justifiable in a democratic society.
Overall, my view is that section 33 imposes a vague and onerous responsibility on citizens which is unrealistic and unreasonable. This is particularly the case where the subject in question is the leader of a country from whom accountability to citizens is demanded and who is probably the most discussed person in the country. People must be free to express themselves in respect of that office. There are bound to be errors, half-truths and incorrect versions of information when people participate in political discussions and debate regarding the President. It comes with a job which invites public scrutiny and debate from the informed and uninformed. The law should not criminalise statements made in respect of that office or its holder in pursuit of legitimate democratic goals. As was stated by the Supreme Court of South Africa in the important case of Hoho v The State [2009] All SA 103 SCA, “Although false information will not benefit a society, democratic or otherwise, the right to freedom of expression is not restricted to correct or truthful information because errors are bound to be made from time to time and to suppress the publication of erroneous statements on pain of penalty would of necessity have a stifling effect on the free flow of information.”
I must make reference to the lesser known case of Murray v Ndirowei N.O. And others (2016) where the Constitutional Court struck down section 95(1) of the Criminal Code, which criminalises insults on the basis that it was unconstitutional. The same reasoning which the Court applied in that case can be extended to section 33 of the Criminal Code, a peer provision, in so far as it deals with insults against the President.
Freedom of expression
In his authoritative commentary on the Criminal Code, Professor Feltoe also argues that section 33 is an unreasonable restriction of free speech. “It is arguable that this offence is an undue restriction on freedom of speech and should either be abolished or its ambit restricted to protecting on the dignity of the office itself against scurrilous attacks”, says Professor Feltoe.
The right to free speech which Professor Feltoe refers to is protected under section 61 of the Constitution. Section 61 of the Constitution states that “Every person has the right to freedom of expression, which includes — a. freedom to seek, receive and communicate ideas and other information”. There are some specific restrictions on free speech and as such it does not include “advocacy of hatred or hate speech” or “malicious injury to a person’s reputation or dignity”. While it may be argued that section 33 is saved by these qualifications on the right to free speech, to justify it, one must carry out a critical examination of the provision to determine whether or not it is a reasonable provision which does not go further than is reasonably justifiable in a democratic society.
In the case of Madanhire & another v Attorney General CCZ 2/14, the Constitutional Court rightly recognised that, “There can be no doubt that the freedom of expression, coupled with the corollary right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection”. While there are exceptions, as noted above, they have to be judged on the basis of whether or not they are reasonably justifiable in a democratic society. It is against this standard that section 33 must be judged. The new Constitution sets out in great detail in section 86, the factors to be considered in deciding whether or not a limitation of a fundamental right is reasonably justifiable.
Critically, the Court must consider the legislative objective of the provision and whether or not the means employed to achieve it are reasonable. Is it justifiable to employ those means even though they violate a fundamental right? In this case, the objective is to protect the person and office of the President. But what must be asked is whether restricting free speech using section 33 is reasonable and justifiable means of meeting that objective. Is it necessary to criminalise insults in order to accomplish the legislative objective of protecting the presidency? Are there other, less intrusive means, of achieving the same objective?
The consequences of criminalising conduct covered in section 33, which is common-place in a democracy, is to place ordinary people at risk of arrest for any statements that they might make about or in respect of the President, even where they thought they were making legitimate criticism in exercise of their freedom of speech. The effect of section 33 which is to silence people when it comes to criticism of the presidency and to stifle the free flow of information, which is the antithesis of what is expected in a democratic society. This results in a people who are unable to hold their President to account; a people who are perennially fearful of commenting upon their President for fear of being accused of undermining him or his office, or insulting him, particularly given its broad and vague nature. This is made worse by the stiffness of the penalty imposed for the offence – up to one year imprisonment or a fine of up to level 6 or both.
When faced with a similar question of whether section 96 of the Criminal Code which criminalised defamation was constitutional, the Constitutional Court ruled in the Madanhire case that the provision was unconstitutional. Judge Patel, who wrote the judgment pointed out, “… the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. In short, it is not necessary to criminalise defamatory statements”. The reasoning of the Constitutional Court in that case in respect of criminal defamation is of great relevance to the offence of undermining or insulting the President. It is arguable that section 33 is disproportionate for purposes of achieving the legislative objective of protecting the presidency. Indeed, much of the excellent reasoning advanced by Judge Patel in that case can be applied to a case in which section 33 is under scrutiny. Just as the Court found that there was no place for criminal defamation in the modern age, it can be argued that there is no room for offences as inane as insulting the President or undermining his/her office particularly in a political environment in which politics is of an adversarial nature, where arguments between rivals are traded on a regular basis.
As for false statements, the court has previously accepted that freedom of expression in a democracy is broad enough to cover false statements within its ambit. In the seminal Chavhunduka case, he Court said it would give a “benevolent and purposive interpretation to the provisions of the Constitution guaranteeing freedom of expression” and added that the idea of freedom of expression encompasses “statements and opinions regarded by the majority as false”. It adds further credence to the argument that section 33 is an excessive response to the problem.
As for the insult law, it has been recognised by some courts that, “freedom only to speak inoffensively is not worth having.” (Redmond -Bate v Director of Public Prosecutions [1999] EWHC 732. In the Chavhunduka case, the Court also stated, “Mere content, no matter how offensive, cannot be determinative of whether a statement qualifies for the constitutional protection afforded to freedom of expression”.
Political Rights
Section 33 also falls short against the standard of the protection of political rights, protected under section 67 of the Constitution. In particular, section 67(2)(d) protects the right of every citizen “to participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause”. Inherent in this is the right to challenge the government or party, which is led by the President. It goes hand in hand with the right to free speech. Many people who are charged under section 33 are opponents of the ruling party or critics of government who are exercising their legitimate rights to challenge the government or hold it to account. People express their frustration and rightly so against the head of government and sometimes, they do so using coarse language. It may not be the right thing to do, but it should not be criminalised.
In any event, the President is not above the law and he is certainly not above criticism. However, section 33 essentially criminalises this criticism. In the exercise of their political rights, citizens may use words or do things that some might find offensive but that should not be a reason to stifle their constitutional rights. It is accepted that the political field involves a great amount of debate and that that sometimes, people quarrel and harsh words are exchanged. It comes with the terrain. The President, whom as I have already stated is an active political player who also makes threats and insults must not be immune from taking the same from his competitors and critics. What’s good for the goose must be good for the gander. A law which protects one and makes criminals out of others for similar conduct is unjust, unfairly discriminatory and unconstitutional. This is what section 33 does.
Conclusion
In conclusion, it is my firm belief that section 33 is an outdated and unjust law which is not fit for purpose. It is unconstitutional and should be struck off the statute books because it is a serious hazard to democracy. I have advanced four principal arguments:
- It is ill-suited for a system with an executive President who is an active political player. It was designed for an era of a ceremonial President who needed protection from politics as he/she was not a political actor.
- It is too wide and too vague that it provides no reliable and specific guidance to citizens and therefore violates the right to protection of the law under section 56(1) of the Constitution.
- It violates section 61 of the Constitution in that it unduly restricts freedom of expression in a manner that is not reasonably justifiable in a democratic society
- It erodes citizens’ political rights protected under section 67 of the Constitution.
The Constitutional Court has already struck down section 96 of the Criminal Code which provided for criminal defamation. The same Court has also struck down section 95 of the Criminal Code, which provided for the offence of criminal insult. The Court has been consistent in its disapproval of criminal laws which unduly erode free speech. There is no justifiable reason why section 33 which provides for presidential insults can survive where its peer provisions have fallen. In any event, the Court had already set a good precedent in the Chavhunduka case back in 2000, when it struck down a provision of the notorious Law and Order (Maintenance) Act [Chapter 11:07] on the basis that it was too broad and vague to be constitutional.
What we are seeing is the harassment of political opponents and critics of President Mugabe through the agency of section 33. The war veterans’ leadership are not the first victims of section 33. They are only the latest victims, but as long as that provision remains on the statute books, they will certainly not be the last. This is why I wrote last week that progressive Zimbabweans must defend the rule of law and part of it is advocating for the abolition of section 33 under which the war veterans are being charged. Because the next victim is the probably the person reading this article. It is an unjust law which has not place in a democratic society which must encourage free speech and public accountability of leaders.
waMagaisa
