VERITAS
ON 23 December, the government presented opposition parties and activists with an unwelcome Christmas present.
The long-threatened “Patriot Bill”, more properly the Criminal Law (Codification and Reform) Amendment Bill, was published in the Government Gazette.
The Bill will amend the Criminal Law Code in four respects:
It will create the crime of “wilfully damaging the sovereignty and national interest of Zimbabwe” [this is the “patriot” part of the Bill].
It will provide mandatory minimum prison sentences for rape.
It will alter the definition of dangerous drugs whose possession, sale and use are prohibited by chapter VII of the Code, and
It will narrow the scope of the crime of abuse of public office.
We shall deal with each of these in turn.
Unpatriotic acts
Clause 2 of the Bill will insert a new section into the Code, creating the crime of “wilfully damaging the sovereignty and national interest of Zimbabwe”. The crime will be committed by a citizen or permanent resident of Zimbabwe who takes an active part in a meeting involving or convened by an agent of a foreign government, if the citizen or resident knows or has reason to believe that the object of the meeting is: to consider or plan armed intervention in Zimbabwe by the foreign government, or to subvert or overthrow the constitutional Zimbabwean government, or to consider, implement or extend sanctions or a trade boycott against Zimbabwe, or against an individual or official if the sanctions or boycott affect a substantial section of the people of Zimbabwe.
Penalties for the crime differ according to the object of the meeting: if the object of the meeting is to consider or plan armed intervention, the penalty for participating in it is the same as for treason, namely the death sentence or imprisonment for life, if the object of the meeting is to subvert or overthrow the government, the penalty for participating in it is the same as for subverting constitutional government, namely imprisonment for up to 20 years, and if the meeting is about sanctions or a trade boycott, the penalty for participating in it is a fine of up to ZW$200 000 or imprisonment for up to 10 years or both. And in addition, if the crime is committed in aggravating circumstances (i.e. if sanctions were implemented as a result of the meeting or if a non-binding advisory was issued with the same effect as sanctions, or if the convicted person made a false statement during the meeting) and if the prosecutor so requests, the court may impose any of the following penalties:
o deprivation of citizenship, if the convicted person is a citizen by registration or a dual citizen,
o cancellation of residence rights, if the convicted person is
a permanent resident of Zimbabwe,
o prohibition from being registered as a voter or from voting, for a period between five and 15 years, or
o prohibition from holding public office for a period between five and 15 years.
Comments
1. Planning armed intervention or subversion
There is an overlap between the new crime, insofar as it involves planning armed intervention or subverting the government, and the existing crimes of treason (section 20 of the Criminal Law Code) and subverting constitutional government (section 22 of the Code). So great is the overlap that the new crime is really superfluous, at least in this respect.
2. Sanctions and boycotts
Insofar as the new crime penalises the consideration, planning or implementing of sanctions or boycotts, it will be a serious deterrent to free speech in Zimbabwe:
Not only will it be a crime to attend a meeting in order to plan or implement sanctions, it will be a crime if the meeting merely “considers” them.
Sanctions may be imposed on Zimbabwe for a variety of reasons. They may, for example, be intended to persuade the government to comply with the country’s international obligations. Should a Zimbabwean citizen be penalised for attending a meeting to discuss whether the country should be placed under sanctions for violating its obligations under the World Trade Organisation, Southern African Development Community or African Union? Or to discuss whether the country’s banking system should be black-listed for failing to take measures against money laundering or terrorist financing, as recommended by the Financial Action Task Force (FATF)?
The new provisions are vaguely worded, convoluted and difficult to understand – the drafter does not hesitate to use two, three or even four words where one would do. They are open to misinterpretation, therefore, and law enforcement officers are likely to interpret them as broadly as possible. Opposition activists who even mention sanctions in the presence of a foreigner may find themselves arrested and put on trial, and because of the vagueness of the crime and the difficulty of proving it, their trials will drag on for months and even years.
Penalties
Some of the penalties prescribed for the crime are unconstitutional.
As we noted earlier, for attending a meeting to consider or plan armed intervention the penalty will be the same as for treason – and under section 20 of the Code the penalty for treason is death. However, section 48 of the constitution states that the death penalty can be imposed only on persons convicted of murder committed in aggravating circumstances; hence it cannot be imposed on persons convicted of treason or the new crime. Section 20 of the Code should have been aligned with the Constitution a long time ago.
[That Bill does not propose to amend section 20 of the Code by repealing the death penalty for treason, says something about the sincerity of the government’s avowed intention to abolish the death penalty.]
The additional penalty of deprivation of citizenship, which can be imposed on someone convicted of attending a meeting to consider sanctions, infringes section 39 of the constitution, which provides that citizenship by registration can be revoked only if it was obtained by fraud or if the citizen communicated with an enemy “during a war in which Zimbabwe was engaged”. Citizenship by birth can be revoked only if it was obtained by fraud or mistake, and this is so whether or not the person is a dual citizen.
The additional penalty of prohibition against being registered as a voter contravenes paragraph 2 of the Fourth Schedule to the Constitution, which allows a person to be disqualified from registration only if he or she has committed an offence under the Electoral Act.
Minimum sentence for rape
Clause 3 of the Bill will provide mandatory minimum prison sentences for rape:
If rape is committed in aggravating circumstances, a minimum sentence of 15 years will be imposed,
If there are no aggravating circumstances, there will be a minimum sentence of five years.
Rape is an abhorrent crime which usually has devastating and lasting effects on the victim, but even so there are serious problems with this clause:
Mandatory minimum sentences are inherently undesirable because they deprive a court of its proper role in assessing a fair sentence that fits the crime, the offender and the interests of society. Judges and magistrates can make mistakes but there is something strange in the idea that politicians are better than experienced judicial officers at determining appropriate sentences.
Mandatory minimum sentences are unconstitutional unless there is some provision in the law for them not to be imposed in special circumstances. Clause 3 of the Bill contains no such provision.
It is not clear what are aggravating circumstances that would justify a court in imposing the 15-year minimum sentence. The clause says it will be aggravating if there is a finding adverse to the accused on any factor described in subsection (2) of section 65 of the Code, but that subsection lists general factors affecting sentence, such as the ages of the accused and the victim, the number of people who took part in the rape, and the relationship between the accused and the victim. What precisely is an “adverse finding” in regard to any of those factors? In view of the severity of the sentence, the clause should spell out precisely what it means.
Definition of dangerous drugs
Clause 4, according to the Bill’s memorandum, will amend the definition of “dangerous drug” in section 155 of the Criminal Law Code
“to include prepared opium, prepared cannabis, cannabis resin and a scheduled drug.”
Actually, all those drugs are already included in the existing definition of “dangerous drug” in section 155 of the Code. What the clause will do is to exclude industrial hemp from the definition and to define what industrial hemp is. It will also insert a provision stating that “in any investigation of an alleged crime” the onus of proving that a substance is cannabis (which is a dangerous drug) rather than industrial hemp (which is not) will lie on the person asserting it – presumably the police or prosecution. The provision, it will be noted, applies to “investigations”, and it is not clear if that term means police investigations or if it extends to prosecutions. The provision is probably unnecessary anyway, because in a prosecution the State has the onus of proving all its allegations beyond a reasonable doubt.
Abuse of public office
Clause 5 of the Bill will amend section 174 of the Code which creates the crime of criminal abuse of duty as a public officer
The crime is committed when public officers intentionally do something that is contrary to their duty or omit to do something that they have a duty to do, in order to show favour or disfavour to someone. The amendment is apparently intended to make it necessary for the prosecution to prove that an accused public officer knew he or she was acting contrary to his or her duty. We say “apparently” because the opening words of the new section are missing from the Bill, so it is impossible to say precisely what the amended crime will be.
The clause should be corrected.
Conclusion
This Bill was mooted in cabinet as long ago as August 2020 and the National Assembly debated the need for it in March 2021, so when it was finally published at the end of last year one would have expected it to be precise and clear. It is not: rather it shows signs of having been cobbled together in haste. Its lack of clarity will make it hard for prosecutors to secure convictions against people charged with wilfully damaging the sovereignty and national interest of Zimbabwe, and will complicate the task of courts when sentencing rapists. And unless clause 5 of the Bill is corrected, it will make the crime of criminal abuse of duty impossible to understand.
The rule of law requires criminal laws to be clear and precise and easy to understand so that everyone knows when they are breaking the law. Vague laws are a hallmark of repressive States which use them to keep their people cowed and submissive; they should not be tolerated in a constitutional democracy which Zimbabwe aspires to be.
Perhaps however these considerations do not matter to the government. As we suggested earlier, the Bill’s lack of clarity will itself deter opposition activists from urging or recommending sanctions, and if they are subjected to prolonged and difficult trials they will be distracted from their oppositional activities. In either of those events the Bill will have achieved, rather unpleasantly, what may well be its real purpose.
