MALABA
DCJ: This is an
application in terms of s 175(4) of the Constitution of Zimbabwe
(hereinafter referred to as “the Constitution”) wherein the applicant submits
that s 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 s 61(1) of the Constitution. The applicant
also submits that s 33(2)(a) of the Criminal Law Code violates her right to
freedom of conscience enshrined in s 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
s 33(2)(a) of the Criminal Law Code, 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 at p 571B:
“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.” (My emphasis)
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.
CHIDYAUSIKU
CJ: I agree
ZIYAMBI JCC: I agree
GWAUNZA JCC: I
agree
GARWE JCC: I
agree
GOWORA JCC: I
agree
HLATSHWAYO JCC: I
agree
GUVAVA JCC: I
agree
MAVANGIRA AJCC: I
agree
Zimbabwe Lawyers for Human Rights,
applicant's legal practitioners
The
Prosecutor General's Office, respondent's legal practitioners
