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.
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withdrawn so the Supreme Court did not make a final determination but at face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. Daily News
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