This is an application in terms of section 175(4) of
the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”)
wherein the applicant submits that section 33(2)(a) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as 'the
Criminal Law Code') is invalid, in that it violates the right to freedom of
expression enshrined in section 61(1) of the Constitution.
The applicant also submits that section 33(2)(a) of
the Criminal Law Code violates her right to freedom of conscience enshrined in
section 60 of the Constitution.
The applicant seeks the following relief:
“It is hereby declared that section 33(2)(a) is
unconstitutional in that:
“It is in violation of section 20(1) of the Lancaster
House Constitution of Zimbabwe; alternatively, it is in violation of
section 61(1) of the 2013 Constitution of Zimbabwe; and is, for that
reason, null and void;
Further, that the court issues any other order it will be
pleased to issue in terms of its wide powers under section 85(1) of the
current Constitution of Zimbabwe.”
The background facts are these.
The applicant is a young female who was 20 years old at the
time of her arrest. On 25 December 2012, the applicant was arrested and
taken to Bulawayo Central Police Station. She was charged with contravening section 33(2)(a)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which
provides:
“33. Undermining
authority of or insulting President
(2) Any person who publicly, unlawfully, and intentionally
-
(a) Makes
any statement about or concerning the President or an acting President with the
knowledge or realising that there is a real risk or possibility that the
statement is false and that it may -
(i) Engender feelings of hostility towards; or
(ii) Cause hatred, contempt or ridicule of;
the President or an acting President, whether in person or
in respect of the President's office; or…,.
(b)…,.
shall be guilty of undermining the authority of or
insulting the President and liable to a fine not exceeding level six or
imprisonment for a period not exceeding one year or both.”
The facts on which the charge was based were contained in
the charge sheet and the Outline of the State Case. The charge sheet reads:
“In that on the 24th of December 2012, and
at Number 7 Paddonview Flats, Paddonhurst, Bulawayo, Shantel Rusike
unlawfully and intentionally dispatched a picture depicting the President of
the Republic of Zimbabwe, Cde Robert Gabriel Mugabe, in a nude state to
Precious Tshuma realising that there was a real risk or possibility that
it causes hatred, contempt or ridicule of the President.”
The Outline of the State Case is as follows:
“1. The complainant in this case is The State.
2. The Accused resides at House Number 226 Higgs Road,
Sunning Hill, Bulawayo, and is employed at Stone Urban as a shop assistant at Shop
No. 43 Bulawayo Centre.
3. On 24th of December 2012, at around 2349
hours, the accused person sent a picture depicting the President of the
Republic of Zimbabwe, Robert Mugabe, naked on the social chat platform
Whatsapp. The picture was written underneath Robert Mugabe turning 87 years on 21 February 2011. Happy birthday
Matibili operation.
4. A report was made to the police leading to the arrest of
the accused person.
5. The accused person had no right to behave in the manner
she did.”
What is clear is that the State got the facts wrong.
The applicant did not have a picture of the President in
the state alleged. The parties agree that what she did was to take a picture of
a child in the nude and replace the head of the child in the picture with a
picture of the President's head. What she then created could not, by any
stretch of imagination, be described as a depiction of the President in the
state suggested. Whatever offence could have been committed by the applicant in
what she actually did, she was not charged with that offence.
The State would have to prove, at the trial, not only that
the applicant committed the conduct alleged in the State Outline but also that
the conduct constituted the offence with which she was charged.
In Williams and Anor v Msipha and Ors 2010 (2) ZLR 552 (S)
it is stated…,:
“To determine
the question whether the conduct committed by the applicants and for which they
were charged with the crime of contravening s 37(1)(a)(i) of the Act
would, if proved at the trial, constitute the offence they were charged with,
the magistrate was required under s 13(2)(e) of the Constitution to take
into account the essential elements of the offence and the conduct which, if
proved at the trial, would constitute the offence charged. He was required to
apply the knowledge of the statute to the conduct actually committed by the
applicants and decide whether it constituted the proscribed conduct.” …,.
The State cannot prove the conduct alleged in the outline
of its case against the applicant because that is not the conduct she
committed. Even if she had been charged with the conduct she committed, it
would constitute the offence if it was proved at the trial that the statement
was false. It would have had to be a statement which, although false, could be
believed as true by some members of the public engendering in them feelings of
hostility towards the President or causing them to hate the President. No
right-thinking person could be deceived into believing the caricature sent by
the applicant to be a true statement about the President.
The statement was made on 24 December 2012, to the
effect that the President was due to be 87 years old on 21 February
2011. The statement makes no sense. The President had already turned 87 on
21 February 2011.
DISPOSITION
The matter is struck off the roll.
