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Second legal note on the new charge against Evan Mawarire

July 19, 2016

I understand the police have revised their charges against Pastor Evan Mawarire and that they are now charging him for allegedly “subverting” the constitutional government of Zimbabwe. This charge is based on section 22(2) of the Criminal Law (Codification) Act (the Criminal Code). The provision states as follows:

 

“Any person who, whether inside or outside Zimbabwe –

 

(a) organises or sets up, or advocates, urges or suggests the organisation or setting up of, any group or body with a view to that group or body –

 

(i) overthrowing or attempting to overthrow the Government by unconstitutional means; or

 

(ii) taking over or attempting to take over the Government by unconstitutional means or usurping the functions of the Government; or

 

(iii) coercing or attempting to coerce the Government; or

 

(b) supports or assists any group or body in doing or attempting to do any of the things described in subparagraph (i), (ii) or (iii) of paragraph (a);

 

shall be guilty of subverting constitutional government and liable to imprisonment for a period not exceeding twenty years without the option of a fine”.

 

Nature of the offence

In layperson’s terms, the salient element of this offence is that the accused person must be involved in efforts to remove the Government using means that are not lawfully provided for under the constitution. The usual constitutional means of changing government is through the agency of the election. It is clear that the person must be involved in the organisation and setting up a group or body with the object of removing the government. This is described in various terms, including: overthrowing or attempting to overthrow the government or taking over the government or taking over its powers unconstitutionally. It may also be where the group aims to “coerce” or “attempts to coerce” the government. I shall refer to these collectively as “prohibited activities” unless the context requires me to be specific. A person who supports or assists such a group or body to carry out those prohibited activities will also be liable under this provision.

 

Not treason

Let me take a slight detour and correct a misconception that this is a charge of treason. It is not. Treason is provided for separately under section 20 of the Criminal Code. It’s similar to treason but it’s a lesser charge which carries a lesser maximum sentence of up to 20 years whereas for treason it’s life imprisonment.

 

Elements of the offence

The first point is that there must be an identifiable “group or body”, which the person must have “set up or organised” in order to carry out any of the prohibited activities. In the absence of a statutory meaning, the words “group or body” would have to take their ordinary grammatical meaning. The state would have to prove that Mawarire “set up or organised” a “group or body” in order to carry out the prohibited activities. As far as facts in the public arena show, Mawarire is a self-appointed who individually and without a group or body decided to express his displeasure over the way the country is run. He expressed his views and has been doing so as an individual, although many other people seem to agree with him. There is no evidence that he has taken active steps to “set up or organise” any “group or body” to carry out prohibited activities.

 

The second point is that even if such a group or body is found to exist, it must have been “set up or organised with a view to that group or body” carrying out any of the prohibited activities. Was it set up or organised in order to overthrow the government? Was it set up or organised in order to take over government? Was it set up in order to usurp the functions of government? Was it set up in order to coerce the government? These are the questions which the prosecution would have to prove before a court of law. Again, evidence of Mawarire’s activities in the public arena do not point to “any group or body” trying to overthrow government or to take over its functions or indeed to “coerce” government.

 

Here, I must quickly point out that the word “coerce” is specifically defined in the Criminal Code. It does not therefore have its broader grammatical meaning but has a narrow and specific meaning given to it by the statute. Section 22(1) of the Criminal Code provides the following definition:

 

“coercing” means constraining, compelling or restraining by –

 

(a) physical force or violence or, if accompanied by physical force or violence or the threat thereof, boycott, civil disobedience or resistance to any law, whether such resistance is active or passive; or

 

(b) threats to apply or employ any of the means described in paragraph (a)”

 

What is clear from this provision is that a critical element of “coercing government” is the use of “physical force or violence”. Where boycott, civil disobedience or resistance are used, they are unlawful if accompanied by “physical force or violence”. All this means the state must demonstrate beyond reasonable doubt that the accused person set up or organised a group or body in order to use physical force or violence against government. If the accused person urged boycott, civil disobedience or resistance to any law, this must have been accompanied by “physical force or violence” for it to be unlawful.

 

Now, looking at the facts in the public arena, Mawarire has been the foremost advocate of peace and non-violence. He has gone all out to urge fellow citizens to be peaceful and not to use force or violence in expressing themselves. It would be absurd in the extreme for the state to argue that Mawarire set up a group or body in order to coerce the government when the critical elements, namely physical force or violence are the very things that he has preached against as evidence in his public videos.

 

I must make reference to the Constitution of Zimbabwe, as I did in my previous note. I do so because all laws, including section 22(2) of the Criminal Code, must be judged in accordance with constitutional standards, because the Constitution is the highest law in the land. Freedoms of assembly and association are also guaranteed under section 58 of the Constitution. This right allows a person to associate with any person or group or body of their choice. It is not a crime to be part of a group or to set up or organise a group. What is prohibited is to do so in order to carry out unlawful activities. Even if Mawarire is part of a group or body, that in itself is not a crime but a constitutional right to which he is entitled. It is up to the state that such a group or body was set up to carry out prohibited activities.

 

The second point is that the right to demonstrate and present petitions – as an individual or as a group – is guaranteed under section 59 of the Constitution. Indeed, civil disobedience, boycott, petitioning, are all legitimate and perfectly lawful forms of demonstrating. In fact section 65 which protects labour rights, provides that “except for members of the security forces, every employee has the right to strike, sit-in, withdraw their labour and to take similar concerted action …” These rights are consistent with the right to engage in boycotts or indeed, general civil disobedience. Section 22(2) of the Criminal Code does not prohibit these constitutional rights and if it did, it would be patently unconstitutional. What it prohibits is the use of “physical force or violence” to accompany their exercise.

 

Now, even if the state argues that Mawarire has urged boycott or civil disobedience, that on its own is not a crime. These are perfectly lawful ways of demonstrating. The state would have to prove that he also urged the use of physical force or violence and on that score it would fail because as I have already pointed out, evidence in the public arena is all about Mawarire urging peace and non-violence.

All in all, I cannot see how the state can sustain a charge of subverting constitutional judgment against a man who has neither advocated for the overthrow or take over of government nor used or urged the use of physical force or violence in the lawful exercise of perfectly constitutional rights.

 

The politics behind the charge

The politics behind this charge is clearly to harass and break Mawarire’s spirit and those who are inspired by his message of peaceful demonstration. Whatever Mawarire has done, he has kept within the bounds of the law, as any responsible citizen should do. He has asserted his abiding loyalty to the flag. He has not formed a political party nor does he have any structure or capacity to take over the functions government. In fact, some of his critics argue that there is no plan or alternative. How can a man who does not have an alternative be accused of trying to take over government? The state has raised the charge simply to make it more difficult for Mawarire to get bail and to set an example to other citizens.

 

As I have already argued, this is yet another embarrassing charge because the activities of Mawarire do not match the elements of the statutory offence. If Mawarire is guilty, then millions of his fellow citizens would probably join him in jail, too. The state must not make criminals out of honest citizens who are simply expressing their unhappiness and calling for corrective measures. But these charges are familiar against perceived political opponents. It is not the usual treason charge, but now Mawarire joins an illustrious list of disseters who have been charged with similar offences: Dumiso Dabengwa, Lookout Masuku, Ndabaningi Sithole, Morgan Tsvangirai, Tendai Biti, and a few others. If there’s any consolation, that in itself is a mark of recognition by the regime. As for government, it is only embarrassing itself and showing once again that the leopard never changes its spots.

 

waMagaisa

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