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Freedom of speech, but no freedom after speech




LAST week, we traversed the journey that opposition politician Job Sikhala has travelled and how he was unconstitutionally denied his section 50 right to bail.

This week, Sikhala was back in court for sentencing on a charge of violating section 31(a)(iii) of the Criminal Law (Codification and Reform) Act. The charge emanated from a tweet that the state attributes to the former lawmaker which stated that the Zimbabwe Republic Police had beaten up a woman carrying a baby on her back and the baby had passed away.

The police rebutted the tweet and arrested journalist Hopewell Chin’ono, lawyer Fadzai Mahere and the politician and former legislator Job Sikhala, alleging that they had tweeted falsehoods against the state about the death of the baby.

Central to this charge is the fact that the section under which the three activists were charged was declared ultra vires the constitution.  In other words, the Constitutional Court declared the provisions of section 31 (a) (iii) as incompatible with the provisions of section 20 of the then constitution.

Freedom of speech is now guaranteed under section 61 of the current constitution. There is nothing much that has changed from the freedoms of the former constitution and the freedoms provided in the current constitution.

However, Sikhala, a former Zengeza West MP, was sentenced to a wholly suspended nine months and fined US$500 over a law that no longer exists on Thursday.

That the section of the law under which Sikhala was convicted and sentenced no longer exists is a fact.

The declaration on the unconstitutionality of section 31(a) (iii) was made in the case of Constantine Munyaradzi Chimakure, Vincent Kahiya and ZimInd Publishers versus the Attorney-General of Zimbabwe.

The judgment of the full bench that was composed of the then and now late Chief Justice Godfrey Chidyausiku, the then Deputy Chief Justice Luke Malaba, Justice Ziyambi, Justice Garwe and Justice Cheda was written and delivered by the now Chief Justice Malaba. It is one of those judgments that one wishes could still be written in other important constitutional questions and matters concerning the government of the day.

Whether we will see that in our lifetime remains a mirage. By the way, there has not been much activity in the Constitutional Court and one wonders why.

But l digress.

The question that was before the court was whether or not section 31(a) (iii) of the Criminal Law (Codification and Reform) Act [Cap. 9:23) (“the Criminal Code”) contravenes the declaration of the fundamental right to freedom of expression as was contained in the former constitution.

Section 31 (a) (iii) as it was before being declared inconsistent with the constitution, prohibited under threat of punishment the publication or communication to any other person of a false statement with the intention or realising that there is a real risk or possibility of undermining public confidence in the law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe.

In his judgment Deputy Chief Justice Malaba as he was then, made some cogent findings. Allow me dear reader to have Malaba DCJ speak for himself in his own words on what he stated regarding your freedom of speech.

“There is one indivisible freedom for every individual and that is freedom from unwarranted interference by government.  The fundamental rights protected by the constitution and exercised by the individual are assertions against the state of different aspects of the freedom inherent in every individual as a human being.  Freedom of expression asserts the autonomy of thinking, linguistic and communicative elements of the life of an individual and a thin slice of the universe of communication policy. 

Section 20(1) of the constitution defines in broad terms the nature, content and scope of the cluster of rights the enjoyment of which is protected against interference by the Government under the principle of freedom of expression.  The respondent does not dispute the fact that liberty of publishing or communicating one’s thoughts, ideas and information expressed in an oral, written or symbolic act to others is essential to the enjoyment of freedom of expression.

There are in fact three dimensions to the process of the exercise of the rights guaranteed by section 20(1) of the constitution. There is an internal dimension (the formation and holding of opinion, ideas and information); a communicative dimension (the expression of opinion, imparting of ideas and information) and an external dimension (the effect of opinions, ideas and information on the addressee or the audience i.e. on the rights of others or public interests listed in section 20(2) (a) of the constitution). 

The guarantee of freedom of expression affects the holding sphere, the communicative sphere and the external sphere.  The areas constitute an indissoluble unit.

Protection of the fundamental right to freedom of expression is based on the belief that man is an autonomous and rational agent capable of acquiring knowledge which he or she uses to distinguish right from wrong. 

He or she is under a duty to promote the general welfare of the community to the extent that it is not injurious to his or her own lawful interests.  

Freedom of expression is defined not only in terms of the protection of the right to hold opinions, but also to receive and impart ideas and information without interference. 

What is protected by the right is not only the benefits of the communicative process but also the effects the dissemination of ideas and information has on the audience including public interests.

The state is placed under an enforceable fundamental obligation not to interfere with the exercise of freedom of expression. It may interfere only when the activity or expression poses danger of direct, obvious and serious harm to the rights of others or the public interests listed in section 20(2) of the constitution.  

Ideas and information are the result, basis and means of cognitive interpretation by man of the real world around him or her.  It is by imparting ideas and information he or she holds to others that an individual can let them know his or her thoughts on matters of private and public concern. 

In that way, he or she can influence the attitude of others towards him or her.  So regard freedom of expression consists of the right to express and convey one’s conviction and opinion on any matter orally or by writing, printing or any other method addressed to the eyes and ears of other people. 

It is by receipt of ideas and information imparted to him or her by others that the individual can become a social being. He or she would know whether his or her view of the world is correct or wrong thereby attaining self-fulfillment, political or social participation and discovery of truth. 

The nature and scope of the rights guaranteed covers every activity which conveys or attempts to convey a message in a non-violent form. 

Section 20(1) of the constitution embraces all content of expression irrespective of the nature of the message sought to be conveyed.  The right to freedom of expression applies to ideas and information of any kind. Conduct which does not convey meaning or seeks to convey meaning in a violent form or manner does not fall within the protection.  ‘Form’ refers to the physical form including words in which the message is communicated and does not extend to content.

A free person abhors violence perpetrated against him or her by others just as they also abhor violence perpetrated by him or her against them. Ideas and information are imparted and received for mental digestion and acceptance or rejection.  Freedom of thought means that the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest:  Naraindas v State of Madhya Pradesh (1974) 3 SCR 624 at 650. 

It is the battle of minds and the free debate of ideas and information that enjoy the benefits of the protection of freedom of expression.  Any form of violence by which meaning is conveyed is an antithesis of freedom of expression. The purpose of the guarantee is to ensure that people can manifest and convey the meaning of their thoughts and feelings in non-violent ways without fear of censure.

Publication or communication of a false statement to any other person on any subject matter or topic in a non-violent form is an activity which conveys or attempts to convey meaning.  The protection provided by section 20(1) of the constitution does not have regard to the truth or falsity of the meaning of the ideas and information published or communicated.  Section 20(1) is a value free provision which does not recognise any basis for the test of truth.  In other words, truth is not a condition sine qua non of the protection of freedom of expression.  This freedom applies to all expressions regardless of their nature, content, quality or truth.  The content of a statement should not therefore determine whether it falls within section 20(1) of the constitution’s protection: See New York Times v Sullivan 376 US 254(1964) at 271-272.

Freedom of expression finds its true meaning when its enjoyment is protected from interference by government. The court recognises the fact that people tell lies in a variety of social situations for different reasons. 

Lies are not necessarily without intrinsic social value in fostering individual self-fulfilment and discovery of truth.  For that reason, the constitution protects against state interference the rights of every person to speak or write and communicate or publish to others what he or she thinks. These rights are part of the “freedom” or “liberty” guaranteed by the constitution.

The fact that a person has told lies to others on any subject matter should not be of concern to the state. 

Government is prohibited from appointing itself as a monitor of truth for people.  They are able to do that for themselves through the free exchange of ideas and information on matters of public interest. 

People must not be denied the right to freely use speech or the press to silence each other and decide what views shall be voiced.  What is protected is really the indivisible freedom of everyone to speak even when they may after they have done so be called liars. 

Anyone has a right to impart or receive ideas and information about the activities of security service institutions regardless of the falsity or truth of the message conveyed, provided no harm or real likelihood of harm to the rights of others or public interest results in breach of law.

The principle of equality of treatment behind the right assures those who tell lies and those who tell the truth that the guarantee of the right to freedom of expression belongs to them together. They are assured that when they exercise it to harm the rights of others or public interest, they will be treated the same in the eyes of the constitution and the law. The liberty cannot be denied to some ideas and saved for others.”

In the 81-page judgment, the Chief Justice schooled the state not just on its boundaries but also, dare l say, on its feelings. The state as an institution must operate outside of the feelings of those who occupy spaces. The findings at the end of the day were that section 31 (a) (iii) of the Criminal Law Code was rendered to be in contravention of the constitution.

The effect of the findings by the Constitutional Court means that section 31(a) (iii) of the constitution is no longer an existing law and part of our statute books. However, the magistrates who handled the bail matters for Chin’ono, Mahere and Sikhala all came to the very weird conclusion that the section had been revived by the coming in of the 2013 constitution.

In other words, “Lazarus had resurrected” they seemed to say, save that the section 31(a) (iii) Lazarus was being resurrected not at the instance of a Messiah, but of a culture and system that demands his resurrection if it is conducive. That culture and system is one that says you are guaranteed of your freedom of speech but not of your freedom after speech.

The High Court has gone on to dismiss the reasoning of the magistrates’ court in Chin’ono’s matter and has asserted the findings of the Constitutional Court that “Lazarus is dead” and no amount of flogging the horse or stabbing in the dark will produce a dead body.  

The law was incompatible to constitutional values yet Sikhala is still being charged with a non-existent offence and he was even convicted and is being sentenced for something that just does not exist. Section 70 of the constitution aptly says that any person accused of an offence has the right not to be convicted of an act or omission that was not an offence when it took place.

Sometimes it really does not need any medium to interpret the law; the simple text of the law says it all. Do you blame me for the result l gave the judiciary last week? Ungraded, unclassified, unqualified.

I hope l am not caught up in the police shootings of armed robbery suspects who try to escape during indications. This is an issue we will analyse in this space in the coming editions. Another decisive judgment of the then Malaba DCJ is relevant when we place this matter on the operating table. I long for the old days; where did they go? Yesterday and today seem incompatible. Perhaps the then must declare the now as ultra vires.

Till then, Donald remains true to self, but not so sure whether his freedoms are guaranteed after saying what ought to be said.

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