HUMAN rights organisations are continuing to poke holes into the Patriotic Act, with the Media Alliance of Zimbabwe (Maz) and activist Zenzele Ndebele filing a High Court application against sections of the law for violating the constitution.
NATHAN GUMA
A fortnight ago, President Emmerson Mnangagwa assented to amendments to the Criminal Law (Codification and Reform) Act which criminalise fundamental freedoms of association, assembly and speech of any citizen who holds meetings with foreign diplomats or any other foreigner.
The promulgation of clause 2 of the amendment, also known as the “Patriotic Act”, has plunged the country into the dark days reminiscent of the oppressive Rhodesian colonial era.
Media rights organisation Maz and activist Zenzele Ndebele have filed a court application, that challenges section 22A of the Criminal Law Code, with minister of Justice, Legal and Parliamentary Affairs and the Attorney-General cited as respondents.
According to the court application dated 20 July, section 22A of the Criminal Law Code, as amended, is vague and violates the constitutional provision of freedom of speech.
“Section 22A is overbroad and infringes section 61 of the constitution of Zimbabwe guaranteeing the right to freedom of expression, which includes the right to seek, receive and communicate ideas and other information: “a) Section 58 of the constitution on the freedom of association ad assembly, b) Section 67 (3) of the constitution, being the right to vote, or the right to stand for political office, c) Section 39 of the constitution which provides grounds when citizenship may be revoked.
“Section 20 (1) and 23 (1) (c) (v) A of the Criminal Law Code, are unconstitutional as they violate section 48 (1) and (2) of the constitution,” reads the application. Section 48 has the provision of the right to life.
The amendment has also been discredited for its vagueness, which is likely to be used against dissenting voices.
“Willfully injuring the sovereignty and national interest of Zimbabwe’ is not defined with sufficient clarity, if at all, and consequently section 22A (2) is vague and unconstitutional. Subverting, upsetting, overthrowing or overturning the constitutional government of Zimbabwe is not defined with sufficient clarity, if at all, and consequently, section 22A (2) is imprecise, vague and unconstitutional.
“Section 22A (2) is broadly worded, constituting a high potential abuse of and misuse and misleading to silencing of any dissenting voices and consequently unfair, unreasonable, unnecessary and not justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.
“Section 22A (2) (10 is in violation of section 48 (1) as read with section 48 (a) of the constitution of Zimbabwe which limits the imposition of a death penalty only on a person convicted of murder committed under aggravated circumstances,” reads the application.
The Patriotic Act has been viewed as a setback to Zimbabwe’s re-engagement process. For instance, in reaction to its assenting by Mnangagwa, the European Union delegation to Zimbabwe indicated that the Act is regressive in Zimbabwe’s bid to clear its image.
“Zimbabwe as a sovereign country has committed in the Arrears Clearance process to enhancing respect for freedoms of association, assembly and expression, as well as building trust with the international community. Today’s legislation (Patriotic Act) sends a political signal in the opposite direction,” said the EU via its official Twitter handle.
Zimbabwe’s human rights record has been the major stumbling block in the re-engagement drive.
The Canadian embassy in Zimbabwe also said the law goes against principles of expression and association provided for in the constitution.
Legal and parliamentary think-tank Veritas has also said clauses of the amendment to the Criminal Code are divorced from the constitution.
“As we noted, 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.
“The Bill does not propose to amend section 20 of the code by repealing the death penalty for treason, [and this] 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’.
