HARARE – The High Court of Zimbabwe has dismissed an application by Freeman Chari, a biomedical scientist and software engineer, challenging the constitutionality of Section 22A(2)(b) of the Criminal Law (Codification and Reform) Act, popularly known as the Patriotic Act.
In 2023, President Emmerson Mnangagwa enacted the Criminal Law (Codification and Reform) Amendment Bill, introducing provisions related to wilfully injuring Zimbabwe’s sovereignty and national interest.
Represented by the Shava Law Chambers, Chari had argued that the section was unconstitutionally vague and violated his rights to freedom of expression and political rights enshrined in Sections 61 and 67 of the Constitution, respectively.
Civil Division of the Attorney-General’s office, represented first (Minister of Justice) and second ( Attorney-General of Zimbabwe) respondents.
The court found that the section was sufficiently clear and did not infringe on Chari’s constitutional rights.
Justice Dembure held that the words “subverting”, “upsetting”, “overthrowing”, or “overturning” the constitutional government, although not defined in the statute, were not inherently vague and could be given their ordinary grammatical meaning.
The court further found that the section did not criminalise critical behavior acceptable in a democratic society, such as criticizing the government or seeking to democratically challenge the government.
“On the political rights enshrined under s 67, the applicant argued that s 22A (2)(b) penalises peaceful activities to influence, challenge or support the policies of the government or any political cause.
“Clearly, pursuing peaceful means for a constitutional change of government cannot constitute overthrowing a constitutional government,” the judge stated.
“The applicant is misreading the meaning of the words ‘subverting, upsetting, overthrowing or overturning the constitutional government’ as read in the context of the whole provision.
“Participation in lawful activities meant to influence policy making, or an alternative system of governance or hold the government to account for its policies, does not fall within the conduct proscribed under s 22A(2)(b).
“The provision does not violate in any way the constitutionally protected political rights set out in s 67. The applicant cannot claim to have a right to do any of the four activities proscribed by the provisions of s 22A (2)(b).”
The court cited the importance of interpreting statutes in a manner that gives effect to the intention of the legislature and promotes the purpose of the law.
The court also reiterated the principle that the Constitution is a living document that must be interpreted in a way that breathes life into its provisions.
The application was dismissed with no order as to costs.
“The applicant has failed to discharge the onus to show that the provisions of s 22A (2)(b) of the Act are unconstitutionally vague and violate the applicant’s fundamental rights or freedoms under ss 61 and 67 of the Constitution. The application is without merit and cannot succeed,” the judge ruled.
“In their opposing papers, the respondents moved for the dismissal of the application with costs. However, at the hearing, Mr Chimombe submitted that the application must be dismissed with no order as to costs.
The settled position of the law is that the courts generally do not award costs in constitutional matters unless there is conduct warranting such costs. This principle was restated in Bere v JSC & Ors CCZ 10/22, where the Court said:
‘The respondents appear to have disregarded r 55 of the Rules which, in keeping with the established practice of this Court, provides that generally no costs are awarded in constitutional matters.
“This practice was recently reaffirmed in Mbatha v Confederation of Zimbabwe Industries & Anor CCZ 05-2021, at p. 11. In my view, there is no basis or justification in this case to depart from the norm of not awarding costs in a constitutional matter’.
Justice Dembure stated: “The remarks in the above judgment apply with equal force in this case. There is no reason or justification to depart from the same principle and mulct the applicant with an order for costs.
“Accordingly, it is hereby ordered as follows: The application is dismissed with no order as to costs.”
