Legal note on the arrest of Evan Mawarire
Police in Zimbabwe have arrested Pastor Evan Mawarire, the man behind the #ThisFlag citizens’ movement which has been expressing citizens’ concerns over matters of governance, corruption and socio-economic challenges in the country in recent months. This comes in the wake of a successful stay-away last week and calls for more stay-aways this week. Rattled by the expression of citizens’ displeasure, the Zimbabwean government has responded in typical fashion, deploying the instruments of repression, the latest of which is the arrest of the leading figure of the citizens’ movement.
Evan Mawarire was summoned to the Law and Order section of the police service. After he attended with his lawyers, the police apparently ejected his lawyers and thereafter conducted a search of Evan Mawarire’s home. Images show Evan Mawarire in handcuffs during the search even though he peacefully and without resistance presented himself at the police station after he had been summoned. He poses no threat of violence or a risk of escape, but still he has been subjected to the indignity of being handcuffed. There is a symbolic relevance to the act of handcuffing Evan Mawarire. Handcuffs are an instrument of power and restriction of freedom and having Evan Mawarire in handcuffs is supposed to instil fear and kill hope in the rest of the citizens. It is the language of power and repression being communicated, not just to Evan Mawarire but to all citizens who have been inspired by his messages of peaceful expression and demonstration.
I understand that Evan Mawarire is being charged under section 36 of the Criminal Law (Codification) Act together with section 187(1) of the same Act. I will look at both provisions in succession.
This is what the main part of section 36 states:
“(1) Any person who, acting in concert with one or more other persons, forcibly and to a serious extent –
(a) disturbs the peace, security or order of the public or any section of the public; or
(b) invades the rights of other people; intending such disturbance or invasion or realising that there is a real risk or possibility that such disturbance or invasion may occur, shall be guilty of public violence and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.”
This offence falls under Chapter IV – Crimes against Public Order. As is the case in all criminal matters, the onus is upon the state to prove the allegations. There are important elements to this offence which must be satisfied. The provision clearly states that the accused person must have “forcibly and to a serious extent” caused a beach of peace, security or order of the public or invaded other people’s rights. The first question, of course, is whether Evan Mawarire has “forcibly” done any of these things that he is alleged to have done. There has to be evidence that that he used force and the onus is on the state to prove that. However, looking at the videos in the public arena, there is no evidence that Evan Mawarire has forced any person or generally used force to disturb the peace, security or order of the public or indeed, to invade the rights of others. The court would have to define and determine what is meant by “forcible” means and the ambit of “serious extent”.
The second critical aspect of the offence is intention of the accused person – the mental element. Section 36 provides that the accused person must have intended to cause such disturbance or invasion or a realisation of the existence of real risk or possibility that such disturbance or invasion may occur. This state must prove that Evan Mawarire had that intention or that realisation.
Section 187(1) This provision deals with the offence of incitement to commit a crime. It states as follows:
“(1) Any person who, in any manner, communicates with another person – (a) intending by the communication to persuade or induce the other person to commit a crime, whether in terms of this Code or any other enactment; or (b) realising that there is a real risk or possibility that the other person may be persuaded or induced by the communication to commit a crime, whether in terms of this Code or any other enactment; shall be guilty of incitement to commit the crime concerned.”
This is a broad and vague offence which prohibits a person from communicating with another person with the intention to persuade or induce another person to commit a crime. Again the critical element here, as with section 36, is the mental state of the accused. There has to be intention and this intention must be connected to the commission of a crime. The same arguments advanced in regard to section 36 apply here and there is no need for me to repeat them, except to point out that there has to be proof that a crime was committed and that there was a connection between the so-called communication and the crime. There is no evidence that Mawarire has communicated with fellow citizens in order to encourage the commission of a crime. If anything, his message has been that of peace and non-violence, the very antithesis of incitement to commit a crime.
Constitutional validity However, there is a broader issue around the constitutional validity of both section 36 and section 187, which can be challenged. My respectful submission is that both section 36 and 187 are inconsistent with provisions in the Declaration of Rights in Chapter 4 of the Constitution, which protect the right to demonstrate peacefully, freedoms of assembly and association and freedom of expression.
Right to peaceful demonstration First, section 59 of the Constitution provides as follows:
“Every person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully”
This is a broad right which specifically guarantees an individual’s right to demonstrate. The key qualification is that right to demonstrate must be exercised peacefully. There is no suggestion that Evan Mawarire has been violent or has urging violence in the exercise of his constitutional right to demonstrate. If anything, he has been clear and forthright in his call for peaceful expression and demonstration among his fellow citizens. He has been the key voice preaching non-violence. This is a citizen exercising his constitutional rights within the parameters set out in the Constitution. The irony is that a citizen who has urged peace and non-violence is now charged with an offence of public violence.
The right to demonstrate has no other specific exceptions apart from the reasonable qualification for peace. While there may be derogations from rights in the Declaration of Rights, the principle is that they must be reasonable and narrowly construed in order to avoid eroding the substantive rights. One of the problems with the Lancaster House Constitution was that it contained too many derogations from the substantive rights. When the new Constitution was written, a deliberate effort was made to avoid or minimise the amount of specific derogations from the substantive rights.
Against this background, sections 36 and 187 of the Criminal Law Codification Act under which Evan Mawarire is being charged must be read as derogations from the right to demonstrate under section 59 of the Constitution. As such they must be construed narrowly and where it is vague, ambiguous and inconsistent, it must be declared invalid. One part of section 36 (also applies to section 187) which is vague, too broad, ambiguous and unreasonable is where it refers to the accused person as “intending such disturbance or invasion or realising that there is a real risk or possibility that such disturbance or invasion may occur …” I explain below why this part is vague, ambiguous and unreasonable and therefore in violation of the constitution.
The first part deals with intention, so that the state must prove that the accused person had the intention to cause disturbance or invasion. This is a high standard, which requires the state to prove the mental state of the accused person, a very subjective exercise and certainly harder to prove.
However, the second part refers to a realisation of a “real risk or possibility that such disturbance or invasion may occur”. This is quite vague and almost indeterminate, making it a “catch-all provision” which effectively nullifies the constitutional right to demonstrate. For a start, what exactly does “real risk” mean and what is the full ambit of “possibility” cover? Where do the possibilities start and end? How is such a law supposed to accurately the conduct of a person who wishes to exercise his right to demonstrate? It gives the state so much leeway against an accused person: if it cannot prove intention, which is hard, or real risk, which is probably hard, too, the state can always fall back on “possibility”, which is too broad, vague and indeterminate.
My view is that the use of the word “possibility” in section 36 (and section 187) imports such a low standard into the provision such that virtually any person who exercises his constitutionally-guaranteed right to demonstrate is almost always at risk of breaching the provision. It makes no sense and erodes the constitutional right to demonstrate. This makes it an unreasonable provision which cannot possibly pass the constitutional test for derogations from substantive rights under section 86 of the Constitution. I should add that there are other constitutional rights which must be taken into account, including the freedom of assembly and association, under section 58 of the Constitution which states as follows:
“Every person has the right to freedom of assembly and association, and the right not to assemble or associate with others”.
There is also the freedom of expression, under section 61 of the Constitution. There are exceptions to this right, which include that it cannot be used to incite violence, for hate speech or hatred. Evan Mawarire is perfectly entitled to express himself, as he has been doing, through social media. There is no evidence that he has incited violence or that he has issued hate speech. If anything, Evan Mawarire has been one of the great advocates of peace and non-violence and his messages are in the public arena. As such, the exercise of his freedom of expression is perfectly within the ambit of rights guaranteed under the Constitution.
The politics behind the arrest
Finally, the motivation behind the arrest of Evan Mawarire are plain and an embarrassment to the Zimbabwean government: the citizens’ movement he has generated has rattled the government and they have responded in the one way it knows, which is to use the force of law, including repressive laws which are in conflict with constitutionally guaranteed rights. Anyone who has watched Evan Mawarire’s videos knows that he has been expressing his messages responsibly and in a manner that promotes peace and non-violence. He has been careful not to incite violence but instead, to dissuade people from such conduct. This is the same government which is going around the world claiming that Zimbabweans are happy people and asking for assistance from international funders. They will look at these images of Evan Mawarire and wonder whether they are going to fund repression. Everyone, within and outside Zimbabwe has a moral responsibility to ensure that this conduct, performed under the guise of keeping law and order, is restrained.