ZIMBABWEAN human rights lawyer Siphosami Malunga (pictured) says the new “Patriotic Act” — which basically is an amendment of the Criminal Law (Codification and Reform) Act — signed into law by President Emmerson Mnangagwa on Friday is invalid ab initio as it violates critical constitutional principles: The doctrines of vagueness and overbreadth.
Malunga, who is Open Society Africa Programmes Director and who has worked around the world on human rights issues, says the principles of legality state that laws must be sufficiently clear and precise.
The doctrines of vagueness and overbreadth are closely related; they are rooted in the principles of clarity and precision.
The Criminal Law Codification and Reform Amendment Act, criminalises anyone caught “wilfully injuring the sovereignty and national interest of Zimbabwe” and those who participate in meetings with the intention of promoting calls for economic sanctions against the country.
Malunga says the new law, for example the wording “wilfully injuring the sovereignty and national interest of Zimbabwe”, is vague and overbroad, hence invalid.
The common principle behind vagueness and overbreadth is that laws must have a minimum degree of certainty for people to know clearly and precisely what is legal and not. According to the principles of legality, if a law is vague, or overbroad, respectively, it is not a valid law.
A law must be clear enough to be understood and must also be precise enough that it only applies to activities connected to its purpose. The void for vagueness doctrine requires that laws must be so written that they explicitly and definitely state what conduct is punishable.
Overbreadth, shorthand for the overbreadth doctrine, provides that laws regulating speech can sweep too broadly and prohibit fundamental rights. Regulation of freedom of speech or expression, for instance, is unconstitutionally overbroad if it infringes on key protected or entrenched rights.
Said Malunga: “The Patriotic Act of Zimbabwe violates two key constitutional principles: First, the Void-for-Vagueness Principle which requires that terms of a penal statute must be sufficiently explicit to inform citizens what conduct on their part will render them liable to its penalties.
“It also violates the Void-For-Overbreadth Principle. In other words it is overbroad. A penal statue is unconstitutional if its language is so broad that it unnecessarily interferes with the exercise of constitutional rights.”
Responding to Mnangagwa’s move, Khanyo Farisè, Amnesty International’s Deputy Research Director for Southern Africa, said: “The signing of the ‘Patriotic Bill’ into an Act by the President is a grave attack on the rights to freedom of expression, peaceful assembly and association. The enactment of the Bill is stronger evidence that the Zimbabwean authorities are bent on further shrinking civic space and silencing dissent.
“We call on President Mnangagwa to reverse his decision and immediately ensure the repeal of the law to demonstrate the commitment of his government to human rights. His government must fully and effectively respect, protect, promote and fulfil the rights of everyone to freedom of expression, peaceful assembly, and association.
“The Act fails to meet the requirements of legality, proportionality, and necessity. The penalties provided by the Act include loss of citizenship, denial of the right to vote and the death penalty. Imposing these penalties on people simply for peacefully exercising their human rights is patently unconstitutional and incompatible with Zimbabwe’s international human rights obligations.”
The Criminal Law Codification and Reform Amendment Act, 2022, contains overly broad provisions as it criminalises anyone caught “wilfully injuring the sovereignty and national interest of Zimbabwe” and those who participate in meetings with the intention of promoting calls for economic sanctions against the country.
The Act was first published as a Bill in the Government Gazette on 23 December 2022. The Bill was passed by the Lower House of the National Assembly on 31 May 2023 and sailed through Senate on 7 May 2023.
It was signed into law by the President on 14 July 2023.