CITIZENS’ Coalition for Change spokesperson Fadzayi Mahere was on Wednesday convicted for violating a law which the High Court in 2021 said did not exist and was also dismissed by the Supreme Court in 2013.
The development heightens fears of lawfare ahead of the next elections.
Mahere went through full trial on charges of communicating falsehoods prejudicial to the state.
The case involved her tweet over a woman whose child was erroneously reported to have been struck to death by a baton-wielding Harare police officer while he was enforcing Covid-19 lockdown regulations in 2020.
Police denied the claim and said the child at the centre of the storm was alive. However, in 2021, High Court Justice Jester Helana Charewa ruled that “there is no offence called publishing or communicating statements prejudicial to the State under Zimbabwean law”.
Judge Charewa also ruled that section 3 (a) (iii) of the Criminal Law Act Chapter 9:23 is no longer part of Zimbabwean law.
The ruling was made after journalist Hopewell Chin’ono, who was arrested on the same week as Mahere, had approached the court challenging the law.
In another Supreme Court judgment delivered on 3 June 2013 by Justice Luke Malaba who is now Chief Justice, it was again ruled that the law does not exist.
The case had been brought before the courts by journalists Constantine Chimakure and Vincent Kahiya as well as The Zimbabwe Independent against the Attorney-General.
The matter was a referral for determination of a question of validity of statutory provisions for the restriction of the exercise of freedom of expression in terms of Section 24 (2) of the Constitution of Zimbabwe.
The question 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 under Section 20 (1) of the Constitution.
The section 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 police, prison service or the defence forces of Zimbabwe.
Part of the Supreme Court ruling reads: “The pervasive threat inherent in the very existence of a law authorising a criminal prosecution for making a false statement coupled with the prospects of suffering a sentence of imprisonment up to twenty years has an unconstitutionally inhibiting effect on the exercise of the right to freedom of expression by all citizens.
“People may be inhibited from saying what they desire to say or publish for fear that if they are caught, prosecuted and fail to prove that what they said or wrote is true they may be convicted and sentenced to long terms of imprisonment.
“This is particularly the case when regard is had to the fact that because of the pervasive nature of false factual statements, Government is provided with a weapon which it may use to prosecute falsehoods against security service institutions without more. Those who are unpopular may fear that the Government will use that weapon selectively against them.
“The chilling effect of the disproportionate threat of the period of the maximum penalty of imprisonment to which a person convicted of the offence is liable harms operations of a free media. By authorising the discretionary imposition of a maximum punishment of twenty years imprisonment for offences amounting to attempts, s 31(a) (iii) of the Criminal Code has a serious inhibiting effect on the exercise of the right to freely criticise public institutions in the performance of their functions.
“A strong constitutional protection of freedom of expression cannot tolerate the imposition of self-censorship on free speech and press through fear of lengthy sentences of imprisonment for offences of publishing or communicating false news.
“Taking into account the fact that freedom of expression is peculiarly more vulnerable to the “chilling effects” of criminal sanctions than any other fundamental right it has been stated by the UN Special Rapporteur on freedom of opinion and expression that penal sanctions, particularly imprisonment should never be applied to offences of publishing false news. The higher the level of the maximum penalty of imprisonment the greater the chilling effect on freedom of expression.
“In the case of offences such as publishing or broadcasting ‘false’ or ‘alarmist’ information, prison terms are both reprehensible and out of proportion to the harm suffered by the victim. In all such cases imprisonment as punishment for the peaceful expression of an opinion constitutes a serious violation of human rights.”
Malaba in the 2013 Supreme Court ruling added: “Experience has shown that it is difficult to excise false statements on matters of public concern such as the performance of law enforcement agents without significantly damaging democratic self-governance.
“What all this means is that such laws are not deemed necessary in a democratic society. What is clear is that because of the severity of the deleterious effects on the exercise of freedom of expression of the level of the maximum penalty of imprisonment the law is not justified by the objective it is intended to serve.
“The requirement that there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by the measure applied by the State in restricting the exercise of freedom of expression was not met.”
Then Chief Justice Godrey Chidyausiku and Judges Paddignton Garwe, Maphios Cheda and Vernanda Ziyambi agreed with the judgement.
Responding to the conviction of Mahere on Twitter, Chin’ono said: “What happened here is that my lawyer Harrison Nkomo didn’t allow the case to go to trial as happened to Fadzayi. He went straight to the High Court on what is called a Review challenging the charge and the law used. There is no crime called Falsehoods and the law doesn’t exist!”
After the High Court’s ruling, proceedings on Chin’ono’s case which had been recorded number CRB number 353/2021 were stopped.
CCC leader Nelson Chamisa also posted on his Tweeter handle lamenting the conviction of Mahere.
“The malicious conviction of Champion @advocatemahere is evidence of the increasing attacks on democratic forces in Zimbabwe. We also have our Change Champion @JobSikhala1 unjustly incarcerated. The conviction is a stark reminder that Zimbabwe needs fixing.”
“We stand against this persecution and weaponisation of the law. This, we must and will end.”
Making his ruling on Mahere, Harare magistrate Taurai Manuwere said: “It is not in dispute that she communicated on her Twitter handle. What is false is that a police officer beat a woman and the baby died. Therefore, the State managed to prove the main and alternative charge that she communicated falsehoods.
“It is true that the tweets did not result in public disorder. Be that as it may, the State did not manage to prove that the publication was meant to incite public violence because there is no evidence to prove that. The State proved that the false statement by the accused was detrimental to the police that they had killed the baby.”
A video of the incident went viral in 2020, with the mother wailing, while holding onto a police officer who had “allegedly assaulted her baby to death”.
The magistrate said Mahere was learned enough as a lawyer to know that accusing the police of killing a toddler without any evidence was an offence.
“Which lawyer would take a video on social media, believe it to be true without verifying? What she did is rumour mongering, she was supposed to verify with the police or the mother before publishing. She did not do so. She was reckless, so her defence of a mistake of fact is not genuine.”
Mahere pleaded for leniency, saying she was a first offender, leading to her being fined US$500.
Prosecutor Sheilla Mupindu had earlier said a fine would trivialise the offence, arguing her actions undermined the authority of the police.
She suggested a custodial sentence of three years.