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Big Saturday Read: The law of presidential insults in Zimbabwe

Flora Kairosi of Karoi

On 4 December 2018, Flora Karosi appeared before a magistrate at Karoi Magistrates Court, in the small farming town of Karoi, 200 kilometres north-west of Harare. The prosecution authority accused her of insulting or undermining the authority of President Mugabe, as he then was. The alleged crime had occurred 5 years earlier in July 2013 during an election campaign.

The summons said she had made "abusive, indecent and obscene comments" concerning Mugabe’s advanced age. The prosecution alleged she had said in Shona, “KaPresident kenyu kachembera kanoda kukwikwidzana nevana vadiki”. The police had translated this literally to mean, “Your President is a geriatric but he wants to compete with the young”.

Five years later, she was in court. Flora Kairosi was saved by the Zimbabwe Lawyers for Human Rights (ZLHR), a human rights group when she appeared before the Karoi magistrate. The lawyers argued that the prosecution’s papers were defective, while for its part, the prosecution seemed to have lost appetite for the case on the day of the hearing. The supposed victim, Robert Mugabe was no longer in office after he was deposed in a coup in November 2017. The Mnangagwa regime was still trying to present a pretty face.

But the fact that Flora Kairosi had been summoned at all, more than a year after Mnangagwa assumed office, was ominous. It was a good reminder that old habits die hard.

Presidential insults

Flora Kairosi is not the only person who has been in this predicament. The law against presidential insults has been on the statute books for many years and it was used with increasing frequency during the last years of Mugabe’s rule. Disaffected by Mugabe’s rule which persisted despite his advanced years, many Zimbabweans vented their frustrations by mocking him. Some, like Flora Kairosi, got into trouble for it.

Opposition politicians also faced the wrath of the law for their comments. Five years ago, in 2015, the Zimbabwe Lawyers for Human Rights said it had represented at least 150 people, all of them accused of either insulting the President or undermining his authority.

Nduna Matshazi WhatsApp problem

In 2015, Nduna Matshazi, an opposition councillor for Bubi Rural District Council in Matebeleland, was suspended after his arrest for posting a message on a council WhatsApp group which allegedly denigrated Mugabe. Councillor Matshazi was reported to the police by the WhatsApp group administrator. His offence, according to The Chronicle newspaper, was that he had “adulterated the Lord’s Prayer to denigrate the President”.

Explaining why they had suspended and reported Councillor Matshazi to the police, the WhatsApp group administrator said, “We created this group solely for communication as council. As council we notify each other on meetings, dates, agendas and other business. When Matshazi’s message reflected on the group chat, everyone reacted with shock and we later reported him to the police,” he said. It sounds like something out of George Orwell’s dystopian novel, 1984, with citizens policing fellow citizens’ speech in an authoritarian environment.

Jembere of Epworth

In 2011, the then MDC MP for Epworth, Eliah Jembere was arrested for allegedly insulting Mugabe or undermining his authority after a speech at a constitution outreach meeting in the small town of Bindura in Mashonaland Central. The police were not happy with the slogan he had chanted. Jembere had allegedly chanted the MDC slogan, "Mugabe mudenga, ZANU PF mudenga, vabatanidzei, roverai roverai pasi!". The police’s translation of this slogan was, "Mugabe up, ZANU PF up, bring them together and drop them down!" They said by doing this, Jembere had undermined the authority of the President.

Chuwe’s Facebook challenge

In 2016, Tompson Mloyie, a policeman was arrested by fellow policemen for allegedly saying “Mugabe is too old to rule and he married a prostitute”. One Moenda Mberi was arrested for offering the opinion that ZANU PF members were too thin because President Mugabe mismanaged the economy. In another case, a headmaster at a school in Shamva, Edson Chuwe and two others were arrested for insulting the President after Chuwe had posted a photoshopped image of Mugabe on his Facebook account. The police said he had posted a picture of Mugabe and singer Rihanna “in a position suggesting that they were in love”. Chuwe was alleged to have captioned the picture with the words, “Isn’t it time to bid farewell to the people of Zimbabwe?” One of his colleagues who “liked” the Facebook post was also arrested and charged with the same offence.

Wiping with Mugabe

When Tapiwa Mufumisi entered a toilet in Landmark Bar in the city of Masvingo in July 2013, he could not have anticipated that he would end up in police cells. He had gone to relieve himself but there being no toilet paper, he had removed a poster emblazoned with Mugabe’s face to use it. It was a fair substitute for toilet paper. But this happened in the eyes of one Osman Musengi, a ZANU PF supporter, who took umbrage at the act and immediately made a citizen’s arrest in defence of his leader. Mufumisi’s luck was that when the matter came before a magistrate, the State was not able to locate the witness.

Martha’s nightmare

Perhaps the most famous case was that of Martha O’donovan, an American citizen who was arrested in early November 2017, just a few weeks before Mugabe was ousted in a coup. She was accused of insulting or undermining the authority of Mugabe for a tweet which said, “We are being led by a selfish & sick man” which was posted on an anonymous account, “Matigary”. The State was alleging that she ran that account. The account remained active after her arrest and detention. The state added a new charge of subverting the government. She was later released on bail. The courts let her go in January 2018, after Mugabe’s ouster. The state had lost appetite as the prosecutors came to court unprepared and without a trial date.

A ghost from the past

More recently, perhaps the most bizarre case emerged in July 2019 when an MDC politician, Godfrey Chimombe was summoned to answer charges of allegedly insulting Mugabe during the 2000 election campaign. This was 19 years after the offence was allegedly committed and nearly two years after Mugabe was ousted from power! That it was revived under the Mnangagwa regime said a lot about the continuities.

Same old story

Tapiwa Chiroodza came face to face with the reality of life under the Mnangagwa regime. The 31-year-old man runs a car wash outfit at a shopping centre in Belvedere, Harare. One day in January 2020, he shouted at two men, Abdulman Sapa and Simbarashe Manyame that they were “fools” for supporting Mnangagwa after he remarked that people should eat potatoes and vegetables. “President vako i**** vanoti vanhu idyai nemurivo!”, Chirowodza is alleged to have uttered during an altercation with the two men. At least one of the men was partial to ZANU PF. They reported him to the police, alleging that he had insulted the President.

When the matter came before the magistrate, Chiroodza, who was without legal representation, was convicted on his guilty plea. The prosecutor had urged the court to take a very dim view of the fact that Chiroodza had failed to respect the President. “The accused person had no right to make such utterances about the President,” argued the prosecutor. “The court should frown at his conduct … A short sharp sentence, wholly-suspended on conditions the court deems fit will deter the accused person and like-minded offenders from committing such offences,” he added.

“The court has noted that you are a first offender who pleaded guilty and saved the court’s time. However, the court does not condone the accused person’s behaviour,” the magistrate said, before sentencing him to a fine of $100 or 10 days in the gaol. Although the offence was disorderly conduct, it is pertinent that both the prosecutor and the magistrate gave weight to the alleged insults to the President. The Chiroodza case is typical of a strategy where a person is punished for insulting the President but without invoking the usual provisions of the Criminal Code.

The Criminal Law Code

The relevant provision under which the majority of these people were arrested is section 33 of the Criminal Law (Codification) Act (Chapter 9:23) (hereafter “the Criminal Law Code”). The provision criminalises statements that are false and cause hostility, hatred, contempt or ridicule of the President or his office. It also criminalises statements concerning the President that are abusive, indecent or obscene. The maximum possible sentence is a level six fine or a year's imprisonment or both.

Contrary to widespread press reports in 2013, this is not the provision that was declared unconstitutional by the Constitutional Court. It was another provision of the Criminal Code (publication of falsehoods) which was declared unconstitutional but it was misreported as having outlawed the presidential insults provision. This is why Martha O’donovan, the American citizen was charged with the offence in 2017, long after newspapers had misreported that the presidential insults law had been struck off by the Constitutional Court.

In 2011, one Gift Mafuka was convicted by a magistrate in Chipinge and sentenced to one-year imprisonment with hard labour for insulting President Mugabe. The 23-year-old Mafuka had asked two boys why they were wearing T-shirts with the picture of an old and wrinkled man. He appealed the decision.

In Gwanda, one Clemence Zikhali was convicted in 2013 for allegedly making derogatory remarks concerning Mugabe’s private fights during an altercation with a ZANU PF supporter at a beerhall. The ZANU PF supporter reported the matter to the police, leading to the arrest of the young artisan who worked at a cement factory. “We are just shocked with the sentence, it's so disturbing. We have since instructed our lawyers to appeal against the sentence.” said the man’s relative who was an executive of the MDC.

Silencing Free Speech

This law has been used to silence free speech. It is not unique to Zimbabwe. Indeed, Freedom House surveys around the world have shown that the law against presidential insults exists in the statute books of many countries. However, it is used with increasing frequency in authoritarian regimes. George Orwell gave insights into life in a dystopian society in his classic novel, 1984, where truth is silenced.

When citizens are regularly arrested for allegedly insulting the President, they feel unsafe and begin to self-censor. Society resembles a large prison in which citizens monitor other citizens’ actions and words. This is illustrated by the case in Bubi, where a councillor was reported to the police by fellow councillors for allegedly sending an offensive message on their WhatsApp group. The authorities would never have known about the post if the other members of the group had not reported it. In the case of Chuwe, who was arrested for a Facebook post and his compatriots were arrested for liking the post, the aim is to stifle social media interaction. Citizens will think twice before posting satirical messages.

The constitutional validity of the presidential insult law has come before the Constitutional Court on several occasions. While judges have made scathing remarks against this offence, so far there has been no authoritative declaration of invalidity of section 33 of the Criminal Law (Codification) Act. This is because the prosecution has dropped charges at crucial stages. This led the Constitutional Court to strike the case off the roll without making a firm declaration on the question of constitutionality. The next part examines some of the major cases that have come before the Constitutional Court.

State v Mwonzora (2013)

This matter arose from a speech made by Douglas Mwonzora at a political gathering of the MDC on 21 March 2009 at Ruwangwe Growth Point in Nyanga. Mwonzora was accused of having undermined the authority of President Mugabe. The police quoted him as having said in Shona,

“President Robert Mugabe chikwambo uye achamhanya….Ndawona Mugabe achigeza, tauro muchiuno, sipo muhapwa uye ndebvu hwapepe … Pamberi ne M.D.C! Pasi nechihurumende chembavha chinosunga vanhu vasina mhosva chichitora zvinhu zvavo…”

The police translated these literally as follows:

“President Robert Mugabe is a goblin and will run … I saw Mugabe bathing, towel on waist, soap under his armpits and big beard … Forward with M.D.C! Down with bad Government of thieves which arrest innocent people and taking away their property” (sic)

The police charge sheet added more detail to explain the offence:

“5. To ensure that the President Mugabe’s goblin statement is understood by the gathering, the accused sang a song commonly known as “GEHENA” (ARMAGEDEON) in which he led the song with the following Shona lyrics: “Ndawona Mugabe achigeza, tauro muchiuno, sipo huhapwa nendebvu hwapepe” literally meaning “I saw Mugabe bathing, towel on waist, soap under armpits and big beard” and he started fanning his nose as if the goblin he was talking about was smelling.”

The charge sheet continued,

“6. The accused also uttered some statements which may cause hostility or hatred towards the President’s Office when he said that only the Movement for Democratic Change must live long casting other Governments as bad, corrupt, full of thieves, arresting innocent people and illegally taking away people’s property well knowing that President Mugabe belongs to ZANU-PF which was once the ruling Government when the accused said the following in Shona,

“Pamberi ne MDC. Pasi nechihurumende chembavha, chinosunga vanhu vasinamhosva, chichi vatorera zvinhu zvavo” literally meaning “Forward with MDC, down with the bad Government of thieves which arrests innocent people and takes away their property.”

According to the charge sheet, police and “independent individuals” who were at the political gathering viewed these statements as “undermining or insulting the President of the Republic of Zimbabwe in person and his office.”

Mwonzora’s lawyers argued that the way the charges were presented violated his right to the protection of the law. There was no clarity and besides, the facts did not disclose an offence. The Court reiterated the rule that a person should only be charged with an offence based on facts which, if proved at the trial, would constitute an offence. The Court followed the precedent set in the case of Williams & Anor v Msipha N.O. & Ors 2010(2) ZLR 552(S) to the effect that the State has the onus to show that, if proved at the trial, the facts on which the charge is based would constitute an offence.

The Court found that the State had not shown which of the statements made by Mwonzora were false as required to prove the offence. “All the statements contained in the outline of the State case allegedly made by the applicant could not be false,” wrote Chief Justice Chidyausiku who delivered the main judgment.

The Chief Justice also pointed out that Mwonzora’s statements were sarcastic and while some people may have found them offensive, they were not false. His views were,

“The slogan exalting the MDC-T political party and the statement on corruption in Government could not have been about or concerning the President. They could not be described as false statements either. The sarcasm in the conveyance of the message may have offended some of the listeners. It did not, however, make the message itself false.”

The Court’s characterisation of the statement as “sarcastic” is important. Sarcasm is a common language device in political speech and commentary. To criminalise it would expose many people including politicians, political commentators and satirists who use sarcasm in their political communication.

Furthermore, while the Court agreed that the statement that the President was a goblin was false, it also reasoned that it could not have deceived a reasonable person into believing that it was true. For an offence to exist, the statement must not only be false but it must be capable of deceiving those hearing it into believing that it was true. The Court dismissed the accusation with the following words,

“A patently false statement to the effect that the President is a goblin was unlikely to deceive any right-thinking person into believing that it is true. It was unlikely to engender in the hearer feelings of hostility towards the President. In other words, a statement that is patently false that no right-thinking person can believe it to be true cannot carry the intent to inflame in the audience feelings of hostility towards the President.”

Such outlandish statements fall under the language device called hyperbole. Any right-thinking person would know that hyperbole is a device intended to drive home a point and is therefore not meant to be taken literally. People who use hyperbole in speech can expect to use this as a defence to a charge of making false statements intended to inflame feelings of hostility towards the President.

The Court concluded that even if the facts alleged in the outline of the state case were proved at the trial, they would not have constituted the offence with which he was charged, namely that of undermining the authority of the President. It is important to note that Mwonzora had not been charged with the offence of insulting the President.

However, while the Court held that Mwonzora’s rights to liberty and protection of the law had been violated because the facts did not establish an offence, the Court did not deal with the issue of the constitutional validity of the provisions. The Court had another opportunity to deal with the issue in the next two cases.

Maseko and Muchauraya cases (2013)

The second set of cases involves an artist, Owen Maseko and another MDC politician, Pishai Muchauraya. The two cases were dealt with together since they raised the same constitutional points. However, the facts and what the Court stated will be described separately because there are important points that arise from each case.

State v Owen Maseko

Maseko is an artist. Between 25 and 26 March 2010, he held a public exhibition of his paintings and drawings on Gukurahundi at the Bulawayo National Art Gallery. The artwork was accompanied by legends which expressed his thoughts on the social effects of Gukurahundi. However, the exhibition was stopped and he was accused of having published a false statement intended to incite or promote public disorder or public violence or to endanger public safety.

The alternative charge was that he had made statements which caused hatred, contempt or ridicule of the President or his office. He was accused of making statements through his work that President Mugabe had used Gukurahundi to force ZAPU into signing the Unity Accord with ZANU in 1987. (Note that more recently, another man was arrested for the same offence after accusing Mnangagwa of his role in Gukurahundi. The man was giving testimony to the Motlanthe Commission and he explained how his father had been killed by the 5th Brigade)

When Maseko appeared before the Magistrates Court at Bulawayo, he asked for the matter to be referred to the Supreme Court to challenge the constitutionality of the insult laws.

Artistic expressions and free speech

The Constitutional Court found that Maseko’s paintings were not false and that there was nothing to suggest that they had incited violence. “The paintings and drawings made the statement that the historical event happened; people died and there were social effects on the survivors. There was nothing in the visual images themselves that incited people to violence” the Court stated.

The Court also found that being works of art, Maseko’s paintings were prone to multiple interpretations and the police were wrong to ascribe their interpretation as their sole meaning. As Deputy Chief Justice Malaba (as he then was) stated,

“As works of art the pictures were naturally open to diverse interpretations by viewers keen to read their true meaning. The police and prosecuting authority chose to place a particular interpretation on the paintings and drawings which was that they incited or promoted public violence and were intended by the artist to produce that result.”

The judgment, therefore, serves the purpose of protecting artists and works of art generally when faced with charges of insulting the President or undermining his authority. It could be music, satirical drama, poetry, and other forms of art. Since they are all subject to multiple interpretations, the fact that the State has one meaning it doesn’t like does not mean the artist would have committed an offence. There are always other ways to interpret a work of art. Of course, each case must be judged on its merits, but the Court’s reasoning, in this case, is a good starting point for artists.

Collateral purpose: Gukurahundi confirmation

The case also serves another important purpose. It is one of the rare moments of official confirmation of Gukurahundi, the genocide in which at least 20,000 people in Matebeleland and the Midlands provinces were killed by the government in the 1980s. For this reason, the Court’s statement deserves extensive citation,

“The problem with the approach adopted by the police and prosecuting authority is that, for the interpretation they placed on the works of art to ground the element of incitement to public violence in the offence, the statement that the historical event happened with negative social effects on the survivors had to be shown to be false. The learned magistrate made the finding that the occurrence of the historical event and its social effects was a fact.”

It is not often that the reality of Gukurahundi gets official confirmation within the arms of the State. Not even Parliament has made an authoritative statement confirming Gukurahundi. Here, the Court confirms the finding that Gukurahundi and its social effects are a fact. In some ways, Maseko’s arrest and ordeal through the courts could be interpreted as a part of his art exhibition, in which the difficulty of telling the Gukurahundi story is depicted and that in the end, it can’t be suppressed forever.

State v Pishai Muchauraya

Pishai Muchauraya was an MDC MP when he addressed a public gathering at Murambinda in Buhera on 8 October 2006. He was accused of insulting the President or undermining his authority. He was alleged to have told the gathering that the President was aged 82 years and therefore, an old person. It was said that he had uttered words to the effect that because of his advanced age, the President was unwell and should, therefore, not extend his term of office.

When Muchauraya appeared before the Magistrates Court at Murambinda in 2010, he asked for the matter to be referred to the Supreme Court to challenge the constitutionality of the insult laws.

When the matter came before the Constitutional Court, it found that it was a fact that President Mugabe was 82 years old in 2006 when Muchauraya addressed the gathering at Makoni Business Center, Murambinda. As the Deputy Chief Justice stated, “To then found a criminal charge on the allegation that the statement that the President was 82 years old was false was unfortunate.”

A significant point from this case is that the Court emphasizes the nature of the speech in considering whether an offence was committed. The courts are likely to give more latitude to a political speech delivered in a political context. As the Court stated,

“What is clear is that the criminal offence with which the accused was charged was not intended to cover facts relating to the kind of political speech made by the accused.”

This suggests an acceptance by the Court that politicians have more latitude to make comments concerning the President and that this should not put them at risk of being prosecuted for insulting the President or undermining their authority. Opposition politicians tend to give “unsolicited advice” to the government as part of political engagement. As the Deputy Chief Justice stated,

“Considering the fact that the accused was making a political speech it would require more than merely alleging that he incited the gathering to public violence when he said the President should not extend his term in office because of old age. That is the kind of unsolicited advice a politician in opposition in a democracy would be prone to giving without intending to excite his or her audience to public violence.”

For the Court, Muchauraya had made “deductive reasoning from the true statement on the President’s age” when he advised that President Mugabe should not run for another term.

However, when the matters came before the Constitutional Court on 15 January 2014, the State indicated that it had decided to drop the charges against both Maseko and Muchauraya. The State stated that it had realized that the facts on which the charges were based in both cases could not, even if they were proved at the trial, constitute an offence.

This outcome meant that yet again, the Constitutional Court decided that “the need to give judgment on the question of the constitutionality of the provisions of the Criminal Law Code under which the accused were charged has been obviated. The only course open to the Court is to strike the matters off the roll.” Thus another opportunity for the highest court to make an authoritative determination concerning the constitutionality of presidential insult laws went begging. While Maseko and Muchauraya were free men, the presence of the provisions in the statute as valid law, means they are still hanging above society like the sword of Damocles. The police can still arrest people for insulting the President or undermining his authority.

State v Shantel Rusike (2017)

Shantel Rusike was a young 20-year-old woman when she was arrested on Christmas Day in 2012 and taken to Bulawayo Central Police Station. She was charged with undermining the authority of the President under the Criminal Law Code.

The basis of the charge was that on 24 December 2012 at around 2349 hrs, Shantel Rusike had sent a picture on WhatApp which depicted then President Mugabe in a nude state with a caption which read, “Robert Mugabe turning 87 years on 21 February 2011. Happy birthday, Matibili operation.” The message was sent to one Precious Tshuma, and a report was made to the police, leading to the arrest.

When the matter came to the magistrates' court, Shantel Rusike's lawyers asked for the matter to be referred to the Constitutional Court to challenge the constitutionality of the provisions of the Criminal Code. The Constitutional Court found that the police had got the facts wrong. The Court was very dismissive of the way the police had interpreted the events. It explained,

“What is clear is that the State got the facts wrong. The applicant did not have a picture of the President in the state alleged. The parties agree that what she did was to take a picture of a child in the nude and replace the head of the child in the picture with a picture of the President’s head. What she then created could not by any stretch of imagination be described as a depiction of the President in the state suggested. Whatever offence could have been committed by the applicant in what she actually did, she was not charged with that offence.”

The Court also held that the statement should not only have been false but it should have been capable of being believed to be true by members of the public, causing them to be hostile to or to hate the President. As the Court stated,

“It would have had to be a statement which although false could be believed as true by some members of the public engendering in them feelings of hostility towards the President or causing them to hate the President. No right-thinking person could be deceived into believing the caricature sent by the applicant to be a true statement about the President. The statement was made on 24 December 2012, to the effect that the President was due to be 87 years old on 21 February 2011. The statement makes no sense. The President had already turned 87 on 21 February 2011.”

In other words, the Court was asking the police and prosecution to be more serious. The Court was politely telling the State that its case was frivolous.

State v Jabulani Sibanda (2015)

Former chairman of the war veterans association, Jabulani Sibanda was arrested in 2014 for saying that President Mugabe and his wife Grace were plotting a bedroom coup to remove Vice President Joice Mujuru. He said the plan was to replace Mujuru with Grace Mugabe. He is alleged to have said power “was not sexually transmitted”. For this, Sibanda was accused of insulting the office and person of President Mugabe.

Sibanda had asked for the matter to be referred to the Constitutional Court, arguing that the Presidential insult provisions should be declared unconstitutional. However, when the matter came before the Constitutional Court it was struck off the roll based on procedural irregularities in the referral by the magistrate. This meant that there was again, no determination of the constitutionality of the Presidential insults provisions as measured against freedoms of conscience and expression under the 2013 Constitution.

State v Danga (2013)

In this case, Tendai Danga was arrested for allegedly insulting President Mugabe during an argument at a beer-drinking session at Northend Shopping Centre in Bulawayo. Danga had challenged the constitutionality of the presidential insult provisions in the Criminal Code.

However, when the matter came before the Constitutional Court in 2013, the prosecution conceded that the facts did not disclose an offence of insulting the President or undermining his authority. He was no longer proceeding with the case. According to the Zimbabwe Lawyers for Human Rights, which represented Danga, the conduct of the State drew a strong rebuke from the Constitutional Court. The following is an extract of the ZLHR report,

“This prompted Deputy Chief Justice Luke Malaba to issue a stern warning to the NPA [National Prosecuting Authority] to review similar cases and to ensure that only deserving cases were brought to the Constitutional Court. He admonished the NPA against prosecuting matters in which statements were uttered in drinking halls and other social places, as the pursuit of such frivolous matters only served to bring disrespect on the Office of the President."

The Herald newspaper on 31 October 2013 quoted Deputy Chief Justice Malaba (as he then was) as saying, “I think it is important that the name of the President is not just dragged here to the court unnecessarily. The Attorney General should be careful not to allow prosecution when a person says something in a bar, where people are just making statements while drunk.”

This epitomises the generally hostile judicial attitude towards the rampant use of the law of presidential insults. The judiciary is right. Use of this law embarrasses the President more than the conduct that is complained of and one might add that it puts the government in a very negative light. When international media covered these stories, it was to demonstrate that Zimbabwe is indeed a Banana republic in which an egomaniac tormented citizens by stifling criticism.

What are the key points from the cases?

Judicial reluctance

First, while the police and prosecution authorities have a strong appetite to apply provisions criminalising presidential insults, hence the rampant arrests and prosecutions, the Constitutional Court has been a more reluctant customer. The Constitutional Court has been more dismissive of these offences. The remarks by both the late Chief Justice Chidyausiku and the current Chief Justice Malaba have been highly critical of these prosecutions which do more damage to the presidency than the comments on which they are based. There is a sense of embarrassment on the part of the highest court in the country that it should be occupied with such inane matters.

High threshold for the prosecution

Second, the Constitutional Court has provided some guidance which makes it hard for the prosecution authorities by setting a high standard for prosecuting the offences. A careful study of these cases suggests several lines of defence that the judges have offered which defence lawyers may use whenever their clients are accused of insulting the President or undermining his authority. An accused person’s first point of challenging the State case is that, even if they are proved at trial, the facts presented by the prosecution do not disclose an offence. This has been used successfully in several cases.

The Court has demonstrated that it is not enough to prove that a statement is false but that besides, it must be shown that it is capable of being believed as true by “right-thinking people” - an objective test. This protects statements that are hyperbolic - exaggerated statements which no-one could possibly believe to be true.

The Who, What, How and Where of the speech

The Court has shown that there are certain important considerations in determining whether an offence has been committed. These include the WHO made the speech, WHERE the speech was made and WHAT the speech was. In this regard, the Court has demonstrated greater tolerance by speeches made by politicians and artistes and by ordinary members of the public. It has also shown tolerance for speeches delivered at political gatherings as part of the political trade and by artistes as part of their work. The Court would likely be equally tolerant to journalists and their work. The Court has already outlawed criminal defamation and provisions that allowed criminalisation of journalists for allegedly publishing falsehoods under section 31 of the Criminal Code.

The Court has also shown that statements that qualify as “beer talk”, that is, statements made during drinking sessions should not be taken seriously by police and prosecution authorities. Arguably, the same principle could also be extended to “social media talk”, such as satirical comments or spoofs posted in WhatsApp groups. Finally, the Court has shown tolerance to language devices such as sarcasm, satire and hyperbole. This is important because it offers protection for free speech.

Missed opportunities

However, while the Constitutional Court has demonstrated a progressive streak in connection with the law of presidential insults and free speech, it still hasn’t made an authoritative declaration of constitutional invalidity of the provisions in the Criminal Code. All cases that have come before it, have either been struck off the roll because the prosecution withdrew the charges or they have been dismissed on another ground. In the Muchauraya and Maseko cases, the state had a climbdown and withdrew the charges. In the Mwonzora and Rusike cases, for example, it was because the facts did not disclose an offence. In the Sibanda case, it was because the lower court had failed to properly refer the matter to the Constitutional Court.

The consequence of this, as we have already seen, is that the Constitutional Court has not made an authoritative decision on constitutional validity, which means the provisions are still part of the law. The police can still arrest people because they insulted the President or undermined his authority. Indeed, this is why the provisions are still being used long after the Mugabe regime ended. There are even bizarre revivals of old cases, such as the case of Chimombe who allegedly insulted Mugabe in 2000 and the case was resuscitated in 2019.

Continuities

In some ways, the presidential insults law and its usage after the 2017 coup are one of the examples illustrating the continuities between the Mugabe and the Mnangagwa regimes; showing that nothing has changed. It would be far better if the Constitutional Court’s apparent disaffection with the presidential insults law were reflected in an authoritative declaration of constitutional invalidity of those provisions of the Criminal Code. As long as they remain on the statute books, they are a ready weapon for the regime against citizens and particularly against critics and opponents.

The cases also illustrate what I have previously referred to as the Panopticon Effect in Zimbabwean politics. The idea of the panopticon is derived from Jeremy Bentham’s design of a prison in which inmates police each other to avoid punishment because they believe they are being watched. I have already referred to Orwell’s depiction of a dystopian society in his novel 1984. The idea of WhatApp group administrators reporting group members to the police is typical of what you might find in such systems. The mere fact that people are arrested for expressing themselves in such spaces sends a chilling effect to the rest of society, leading to self-censorship. The authoritarian regime limits speech by doing very little.

Conclusion

Zimbabwe is not the only country with the presidential insults law on its statute books. As Ammal Clooney and Phillippa Webb say in their Columbia Human Rights Review (2018) article, The right to insult in international law, “it is currently a crime in many countries around the world to insult one of the three "Rs" - rulers, religion, or royals - and people are being prosecuted for such insults in criminal and military courts.” However, it is clear that presidential insults laws are used with increasing frequency and regularity in repressive countries. The presidential insults provisions were frequently used during the final years of Mugabe’s rule, when he was aged and the majority of the people were disaffected by his lengthy rule. Notably, the provisions have been used in the early years of Mnangagwa’s rule, demonstrating not only continuity, but also paranoia of the regime.

The fact that the Constitutional Court has yet to make an authoritative pronouncement on the constitutional invalidity of the provisions means they are still part of the law and overzealous police and prosecution authorities continue to use them. And, as we saw in the Chiroodza case, even when they don’t use the insults provisions, the authorities use other offences to punish people for insulting the President. These provisions are an unwelcome infringement on free speech and as the current Chief Justice has said in the past, their use does more damage to the President than the utterances of alleged offenders.

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