CIVIL society groups continue voicing concern over amendments to the Criminal Law (Codification and Reform) Act, with a lawyers’ grouping, Veritas, dismissing clause 2 as unconstitutional owing to its vague provisions on the death penalty, unpatriotic behaviour, and conflict with the constitution.
Clause 2, also known as the “Patriotic Bill”, which has been passed by both Houses, criminalises fundamental freedoms of association, assembly and speech of any citizen who holds meetings with foreign diplomats or any other foreigner, plunging the country into dark days reminiscent of the oppressive Rhodesian colonial era.
In its analysis this week, Veritas said the clause is unconstitutional. “This Bill appeared for the first time on the Senate Order Paper for Wednesday 7th June. No attempt was made during the Committee Stage to propose remedying the various defects in the Bill listed in Bill Watch 23/2023 and referring to our full analysis of the Bill in Bill Watch 1/2023 of the 11th January 2023.
“It remains a bad Bill and will become a bad Act if the President assents to it — unconstitutional, in its specification of the death penalty for the new crime of unpatriotic behaviour [Clause 2] and the mandatory sentences for rape without provision for the cases in which ‘special circumstances’ justifying departure from the mandatory minimums are present.
“It will curtail freedom of speech and other civil liberties essential to democracy. The Bill is critiqued in Bill Watch 1/2023,” Veritas said.
Veritas said the clauses 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’.”
According to the constitution, 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 High Court is also yet to give a ruling on a challenge to the Bill by the Zimbabwe Lawyers for Human Rights (ZHLR). ZLHR challenged the constitutionality of the Bill on 28 January 2023, arguing that it violates a number of provisions of the Zimbabwean constitution, including the right to freedom of expression, the right to freedom of association, and the right to property.
The ZLHR argued that the Bill is too broad and vague, and that it gives the government too much power to interfere with the rights of Zimbabweans.
The ZLHR also argued that the Bill is unnecessary, as there are already laws in place that deal with national security. Amnesty International’s deputy regional director for East and southern Africa,
Flavia Mwangovya, has also weighed in, saying: “The passing of the ‘Patriotic Bill’ by the Senate is deeply concerning and signals a disturbing crackdown on Zimbabweans’ rights to freedom of expression, peaceful assembly and association.
“The weaponisation of the law is a desperate and a patent move to curtail the rights to freedom of expression and to public participation in elections due in August this year.”
The approval of Clause 5 to the Criminal Law (Codification and Reform) Amendment Bill has also been shot down, with watchdogs saying it makes it difficult for the Zimbabwe Anti-Corruption Commission (Zacc) to secure convictions.
The amendments in clause 5 water down the Act by amending section 174(1), making it easier for public officials to get away with criminal abuse of office.