Judge Admonishes Prosecutors Over Mugabe Insult Laws

Harare, October 30, 2013 – The Constitutional Court on Wednesday declared as unconstitutional some provisions of the Criminal Law (Codification and Reform) Act (Chapter 9:23) under which the State was prosecuting leading visual artist Owen Maseko for allegedly undermining or insulting the authority of President Robert Mugabe.

The Constitutional Court declared as unconstitutional Sections 31 (a) (iii) and 33 (a) (ii) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) as they were in contravention of Sections 20 (1), 19 (1) and 18 (1) of the former Constitution of Zimbabwe.

In a unanimous decision in the matter of Maseko v the Attorney General, the Constitutional Court granted a consent order stating that the State represented by Chris Mutangadura of the National Prosecuting Authority (NPA) had not shown that Sections 31 (a) (iii) and 33 (a) (ii) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) are not in contravention of Sections 20 (1), 19 (1) and 18 (1) of the former constitution.

In an order handed down by Deputy Chief Justice Luke Malaba, the highest court asked Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa to appear before the highest court on 20 November 2013 to show cause why Sections 31 (a) (iii) and 33 (a) (ii) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) should not be declared to be in contravention of Sections 20 (1), 19 (1) and 18 (1) of the former Constitution of Zimbabwe.

Maseko, who was also represented by Zimbabwe Lawyers for Human Rights, petitioned the Constitutional Court seeking an order to declare as unconstitutional laws infringing on artists’ rights to free expression and freedom of conscience, particularly freedom of thought as guaranteed in the Constitution. The visual artist was arrested in March 2010 and charged with contravening Sections 31 (a) (iii) and 33 (a) (ii) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) for staging an exhibition in Bulawayo depicting the 1980s Matabeleland massacres known as Gukurahundi carried out by a crack military unit on the instructions of the government. Maseko was accused of undermining the authority of or insulting the President and causing offence to persons of a particular race or religion. His exhibition, which showcases paintings that explored the torture and massacres that characterized the civil unrest known as Gukurahundi, was forcibly shut down.

Meanwhile, in the case of Tendai Danga, the Constitutional Court struck off the matter from the court roll after the NPA withdrew the charges preferred against the Bulawayo resident. Danga faced charges of undermining authority of or insulting President Robert Mugabe in contravention of Section 33 (2) (a) (ii) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) in a matter that commenced more than two years ago.

The State, represented by a law officer only identified as Uladi from the NPA was quick to concede that the facts in the original matter did not disclose the offence of insulting the President.

This prompted Justice Malaba to issue a stern warning to the NPA to review similar cases and to ensure that only deserving cases were brought to the Constitutional Court. He admonished the NPA against prosecuting matters in which statements were uttered in drinking halls and other social places, as the pursuit of such frivolous matters only served to bring disrespect on the Office of the President.

According to ZLHR, close to 80 similar cases are currently pending before the Constitutional Court and other subsidiary courts of the land. Since 2010, there has been a dramatic increase in the arbitrary application of Section 33 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), where individuals have been charged with allegedly “insulting or undermining the authority of the President”.

Prosecutors had claimed that Danga, who was represented by ZLHR, had questioned the integrity of the Zanu PF leader as President of the Republic of Zimbabwe.