By Tatenda Dewa | Harare Bureau |
Section 33 of the Criminal Law (Codification and Reform) Act that provides against insulting the president is unconstitutional as it is too vague and violates freedom of expression and citizens’ political rights, says Dr Alex Magaisa, a law lecturer at Kent University in the United Kingdom.
Douglas Mahiya, the Zimbabwe National Liberation War Veterans Association (ZNLWVA) information secretary is currently being tried for undermining President Robert Mugabe’s authority or insulting him for allegedly, between April and July 2016, criminally criticizing the head of State.
He was on Saturday denied freedom and his bail application will be heard on Monday.
The ZNLWVA secretary general, Victor Matemadanda, was reportedly picked from his home in Gokwe in the Midlands province over a recent communique that described Mugabe as a “genocidal dictator” but his whereabouts are unknown.
The communique prompted security agents to launch an investigation into its authorship, resulting in Mahiya’s arrest.
According to Section 33 of the criminal code, an act, statement or gesture deemed insulting must be made with the intention or realisation that it poses a “real risk or possibility” that it is false or may engender feelings of hostility towards, or cause hatred, contempt or ridicule of the president.
The statement, according to the statute, is “any abusive, indecent or obscene statement about or concerning the president” and, if convicted, one is obligated to pay or be jailed for up to one year or both.
However, according, according to Magaisa, the law is unfair and not expected in a democracy.
“Section 33 is an outdated and unjust law which is not fit for purpose. It is unconstitutional and should be struck off the statute books because it is a serious hazard to democracy,” said Magaisa in a recent blog. (Read the full article here)
In effect, he said, the insult law puts the executive president beyond criticism even though, as an active politician, he must be subjected to scrutiny.
“An executive president is an active politician who routinely trades arguments with and exchanges occasional political jibes against opponents, especially during election time.
“It is inherently unfair for a legal system to give protection to a president who freely criticizes and insults competitors whenever opportunity permits,” said Magaisa.
Mugabe has often used public forums to insult his political opponents and accuse them of criminal activities, among them his former deputy, Joice Mujuru, who he called a witch and corrupt person.
Mujuru, who now heads the Zimbabwe People First (ZimPF) opposition political party after being ejected from the ruling Zanu PF in early 2015, has maintained that she is innocent.
“Indeed, the reality in Zimbabwe is that President Mugabe has often publicly insulted his political rivals and other critics and yet the legal system has often descended heavily upon those who allegedly insult him,” added the law expert.
He added: “A law that fails to treat all persons equally falls short of the standard of the right to equal protection of the law and against non-discrimination which are protected under Section 56 of the Constitution.”
Magaisa described as too broad and vague the criminal code’s provision that those who insult the president must realise that there is risk or possibility that the statements being made would be false and abusive, insisting that it is difficult to objectively determine that as some statements are made as bona fide criticism.
Section 56(1`) of the constitution guarantees the right to protection by the law and this requires that statutes are crafted in a clear and concise manner.
The law expert insisted that it was difficult to determine and prove the point at which a statement turned intentionally insulting.
“Overall, my view is that Section 33 imposes a vague and onerous responsibility on citizens which is unrealistic and unreasonable,” he said.
He added that the insult law violated citizens’ freedom of expression and was meant to silence people or stifle free flow of information, in addition to undermining the political rights to participate in activities that are meant to influence, challenge or support governmental or political processes. Nehanda Radio