Mahere convicted under a law that virtually no longer exists
After Zimbabwe’s main opposition CCC spokesperson Fadzayi Mahere (pictured) was on Wednesday found guilty and fined US$500 for publishing falsehoods prejudicial to the state and undermining police authority – under a section of the Law (Codification and Reform) Act’s Section 31(a)(iii) which has been struck off by the Constitutional Court (ConCourt) – it became necessary to publish the landmark judgement delivered by then deputy chief justice Luke Malaba who was second-in-command to the late chief justice Godfrey Chidyausiku.
Malaba is now chief justice.
The judgement, a product of five judges who heard the case between 3 June 2010 and 30 October 2013, was No. SC 14/2013 in a constitutional application No. SC 247/09.
The applicants in the case were Constantine Chimakure, Vincent Kahiya and Zimind Publishers (Pvt) Ltd versus The Attorney-General of Zimbabwe.
The applicants were represented by Innocent Chagonda, while Tawanda Zvekare stood for the respondent.
In October 2013, pursuant to the old constitution, the ConCourt of Zimbabwe issued a rule nisi (an order upon condition that is to become absolute unless cause is shown to the contrary).
Specifically, the ConCourt issued a rule nisi that Criminal Law (Codification and Reform) Act’s Section 31(a)(iii) infringed upon the right to freedom of expression.
Under Section 24(5) of Zimbabwe’s old constitution, the minister of Justice, Legal and Parliamentary Affairs had the right to persuade the court that section 31(a)(iii) was justifiable, despite its impact on the right to freedom of expression.
If the minister was not able to show cause, the rule would be “declared to be ultra vires section 20(1) of the former constitution and accordingly invalid”.
The minister did not exercise this right. Rather, he submitted a document arguing that section 31(a)(iii) did not infringe upon the right to freedom of expression, instead of arguing for and giving reasons why the law should remain despite its infringement upon this right.
The minister did not attempt to argue that section 31(a)(iii) was justifiable or provide factors for the court to consider. The court noted, however, that section 24(5)’s purpose is not to give the minister, a non-party, the power to review the court’s decisions.
Later, a representative of the minister informed the court that he would no longer oppose the rule’s confirmation.
Accordingly, the court ordered that section 31(a)(iii) of the Act “was in contravention of s20(1) of the former constitution and therefore void.” Additionally, the court ordered that the respondent pay for the application’s costs and costs for the rule’s confirmation.
On 15 January 2014 the minister’s representation indicated that he was no longer wishing to oppose the confirmation of the rule nisi and the order of the court was reversed.
The court ordered that section 31 (a)(iii) was void since it was in contravention of section 20(1). Lastly, the minister was ordered to pay reparations.
This is a referral for determination of a question of validity of statutory provisions for the restriction of the exercise of freedom of expression brought to the Supreme Court in terms of s 24(2) of the Constitution of Zimbabwe (“the Constitution”).
The question is whether or not s 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 s 20(1) of the Constitution.
The section prohibits 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.
The relief sought is a declaration to the effect that the section is unconstitutional and therefore null and void.
The Court apologises for the delay in giving judgment in this case. The delay has been caused by the fact that reasons for judgment in the case of Jestina Mukoko v The Attorney-General SC-11-12 had to be given first.
The facts of that case had a direct bearing on the circumstances in which the statements forming the subject matter of the charges which gave rise to the Constitutional questions for determination in this case were published.
The determination of the issues raised in the case of Mukoko v The Attorney-General required time for research and reflection on the interpretation and application of the relevant law.
The constitutional question was raised by the applicants in criminal proceedings in the Magistrates Court. They were charged with having committed the crime of publishing or communicating a false statement prejudicial to the State.
Following their request the question was referred by the Magistrate to the Supreme Court for determination in terms of s 24(2) of the Constitution.
The first and second applicants are the reporter and editor respectively of a weekly newspaper called “The Independent” (“the newspaper”).
The newspaper is published by the third applicant, a company incorporated in terms of the laws of Zimbabwe. They were jointly charged with the offence of publishing in the newspaper a false statement to the effect that the law enforcement agency abducted people during the period extending from 25 November to 13 December 2008.
The allegation was that they published the statement with the intention or realising that there was a real risk or possibility of undermining public confidence in the security service institution.
The period extending from 2 August to 20 November 2008 saw bombs being planted by saboteurs at CID Harare Central Police Station; Manyame River Bridge; Manyame Rail Bridge; CID Headquarters at Morris Depot and Harare Police Station. When the bombs exploded, extensive damage was caused to the bridges and parts of the buildings such as the walls, doors and window panes.
From 25 November to 13 December 2008 a few human rights activists and some members of the MDC-T political party employed in the security department were abducted from different places at different times.
The identities of the abductors and places where the abductees were taken remained a closely guarded secret. Except for those who were involved in the planning and execution of the abductions no-one knew what had happened to the people abducted. As a result fear for their lives gripped family members and relatives.
The cases of abduction were widely reported in the print and electronic media.
The question of who had kidnapped the people concerned became a matter of public discussion.
The law enforcement agency, that is to say, the police and State security agents said that they had no knowledge of who the abductors were and what their motive was. The police said they were investigating what had happened with the view of apprehending the culprits and accounting for the whereabouts of the victims.
As the law enforcement agency denied having the abductees in its custody and without communication from the persons concerned, family members and relatives could not invoke the legal remedy of habeas corpus.
On 22 December 2008, after twenty-seven days of forced disappearance, the victims appeared at various police stations in Harare. They had been brought there by State security agents. These people were divided into two groups.
The first group was made up of seven people who appeared at the Magistrates Court at Rotten Row on 29 December 2008 in the case of the State v Kisimusi Emmanuel Dhlamini and Six Others. They were charged with the crime of insurgency, banditry, sabotage or terrorism in terms of s 23(1)(i) and (ii) of the Criminal Code.
The allegation was that whilst acting in common purpose they planted and ignited the bombs that exploded at the Police Stations, Manyame River Bridge and Manyame Rail Bridge.
The second group was made up of nine people who appeared at the Magistrates Court at Rotten Row on 14 January 2009 in the case of State v Manuel Chinanzvavana and Eight Others.
They were charged with the crime of contravening s 24(a) of the Criminal Code. The allegation was that whilst acting in common purpose, in the months of June and July 2008 they recruited or attempted to recruit or assisted in the recruitment of a former member of the Zimbabwe Republic Police to undergo military training in a neighbouring country in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.
On 31 December 2008 all the accused persons in the first case deposed to affidavits in which they revealed that they had been forcibly abducted by State security agents and members of the police. They alleged in the affidavits that they were taken to Goromonzi Prison where they were held until they were released into the custody of the police.
In the affidavits deposed to on 31 December 2008 and 20 June 2009 Kisimusi Emmanuel Dhlamini gave names of the State security agents and members of the police he alleged abducted him from home on 25 November 2008.
In the second case only Jestina Mukoko raised the question of the violation of the fundamental right not to be subjected to torture, inhuman or degrading treatment. She requested the magistrate to refer the question to the Supreme Court for determination. Reasons for judgment in Jestina Mukoko v The Attorney-General SC-11-12 have since been given.
There is uncontested evidence that Jestina Mukoko was abducted from her home at 4a.m on 3 December 2008 by State security agents.
On 6 April 2009 the respondent served indictments on Kisimusi Emmanuel Dhlamini and Six Others for trial at the High Court on 29 June 2009.
The respondent gave notice in terms of s 110(6) of the Criminal Procedure and Evidence Act [Cap. 9:07] that at the trial he intended calling the witnesses whose names he gave.
A summary of what each witness would say at the trial was given. The witnesses were members of the law enforcement agency.
After perusing the indictment papers, and the notice the first applicant wrote two articles which the second applicant edited and the third applicant published in the edition of the newspaper for the week beginning 8 May 2009.
The first article was on the front page. It was titled: “Activists’ abductors named”. The story was that: “The Attorney-General’s Office revealed the names of some members of Central Intelligence Organisation and the police who were allegedly involved in the abduction of human right and MDC activists last November.”
At page two of the newspaper there was the second article. It was titled: “CIO POLICE ROLE IN ACTIVISTS’ ABDUCTION REVEALED”. Under the heading the article stated that:
“Notices of indictments for some of the activists this week revealed the role the CIO and the Police played when the activists were reported missing last year.
A perusal of notices revealed that Assistant Director External in the CIO Retired Brigadier Asher Walter Tapfumaneyi, Police Superintendent Regis Chitekwe and Joel Tenderere, Detective Inspector Elliot Muchada and Joshua Muzanago, Officer Commanding CID Homicide Crispen Makendenge, Chief Superintendent Peter Magwenzi and Assistant Commissioner Simon Nyathi were involved in some of the abductees’ cases.”
The respondent was of the view that the articles contained false statements about the involvement of the law enforcement agency and its members in the abduction of the human rights activists and members of the MDC-T political party. He concluded that the articles contained statements which were materially false and prejudicial to the State. The respondent authorised the institution of criminal proceedings against the applicants for contravening s 31(a)(iii) of the Criminal Code.
Section 31 falls in the category of offences under the heading: “CRIMES AGAINST THE STATE”.
Under the heading is found political crimes such as treason, subversion of constitutional government, insurgency, banditry, sabotage or terrorism and recruiting or training insurgents, bandits, saboteurs or terrorists.
Section 31(a)(iii) of the Criminal Code deals with consequences of the publication or communication of a false statement which harms or is likely to harm the interests of the State in the performance of its functions.