Earlier this month reports circulated on social media alleging that a police officer in Harare had struck a woman with his baton and killed a baby strapped to her back. The Police issued a denial, saying that the police officer had tried to stop a kombi by smashing its windscreen. Glass fragments hit a woman and her baby, and a fracas ensued. The mother and child were taken to a clinic and found not to have suffered an injury.
A well known investigative journalist, Mr Hopewell Chin’ono, and two prominent opposition politicians, Mr Job Sikhala and Adv Fadzayi Mahere, have been arrested for publishing or communicating the original report alleging that the child had died. They are being charged with contravening section 31(a)(iii) of the Criminal Law Code, which reads:
“Any person who, whether inside or outside Zimbabwe—
(a) publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of—
(iii) undermining public confidence in a law enforcement agency, the Prisons and Correctional Service or the Defence Forces of Zimbabwe;
shall, whether or not the publication or communication results in a consequence referred to in subparagraph … (iii) …;
be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level fourteen [currently Z$120 000] or imprisonment for a period not exceeding twenty years or both.”
Invalidity of the Charge
Whatever really happened to the woman and her baby – and the police version is being queried – there is no legal justification for charging anyone with contravening section 31(a)(iii) of the Code, because in 2014 the Constitutional Court, the highest court in the land, declared the section unconstitutional and void. The history of that declaration is as follows:
· In 2009, before the present Constitution came into force, two members of staff of the Independent newspaper were charged with contravening section 31(a)(iii) by publishing an article alleging State agents had been guilty of illegal abductions. They applied to the Supreme Court for an order declaring that the section infringed the right to freedom of expression guaranteed by the former Constitution and was therefore void.
· In October 2013, after the present Constitution came into force, the Supreme Court declared that section 31(a)(iii) did indeed contravene the former Constitution. The judgment can be accessed on the Veritas website [link] – but be warned: it runs to 84 densely-reasoned pages.
· Under section 24 of the former Constitution the Supreme Court was obliged to call on the Minister of Justice to show cause why it should not issue a final order declaring section 31(a)(iii) to be unconstitutional. This provision gave the Minister an opportunity to inform the court of any policy considerations, which had not already been considered by the Court, which might justify the Court in altering its judgment. The Court accordingly invited the Minister to submit policy reasons to the Constitutional Court as to why a final order should not be made.
· The Minister filed a document criticising the Supreme Court’s judgment but not putting forward any policy considerations that might persuade a court to take a different view. At the hearing before the Constitutional Court, the Minister’s lawyer conceded that the Supreme Court’s order should be made final.
· Accordingly, on the 22nd July 2014, the Constitutional Court confirmed the order, declaring that section 31(a)(iii) “was in contravention of s. 20(1) of the former Constitution and therefore void.” This judgment too can be accessed on the Veritas website [link].
· The wording of the Constitutional Court’s order is important: it said that because section 31(a)(iii) contravened the former Constitution it was void – i.e. it did not exist in law. It was, and is, a nullity.
It must be understood that the section did not become a nullity when the Constitutional Court declared it void. It always was a nullity as it contravened the former Constitution; the Court’s declaration was simply a statement of a pre-existing legal fact. This is because section 3 of the former Constitution stated:
“This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”
Section 2(1) of the present Constitution is very much the same.
If therefore Parliament attempted to pass a law inconsistent with the former Constitution – and if Parliament attempts to pass one inconsistent with the present Constitution – the attempt had and has no legal effect and the purported law is not a law and never was a law. It is and always has been a nullity.
This point has been made by the South African Constitutional Court and again by our own Constitutional Court.
Why then are the three being charged with contravening section 31(a)(iii), which is not and never has been a valid law?
The prosecution’s arguments
It seems that the prosecution is raising two arguments:
1. The Constitutional Court declared the section to be inconsistent with the former Constitution, not the present one. This argument has no substance at all because, as we have said, the effect of the Court’s declaration was that the section had never been valid. The coming into force of the new Constitution did not miraculously revive it: although paragraph 10 of the Sixth Schedule to the Constitution states that all existing laws continue in force, that applies only to laws that were in force before the Constitution came into operation [see the definition of “existing law” in paragraph 1 of the Schedule] – and section 31(a)(iii) was never in force.
2. The section was amended by the General Laws Amendment Act (No. 3 of 2016). It is true that the Act did amend section 31(a)(iii) by updating the reference to the Prisons and Correctional Service, but that cannot be construed as re-enacting the whole provision. Quite obviously it was a mistake and the drafter simply overlooked the fact that the section had been declared void. Drafters, like everyone else, make mistakes. If Parliament had intended to defy the Constitutional Court and re-enact the section, it would have made its intention much clearer. Anyway, it is most unlikely that Parliament had such an intention because:
· The Supreme Court’s judgment was carefully reasoned and followed judicial authority in Zimbabwe and elsewhere. The Constitutional Court refused to reconsider the judgment in the second of the cases mentioned above. It is vanishingly improbable that the Constitutional Court would reconsider it now.
· Moreover both judgments were delivered by the present Chief Justice with the unanimous concurrence of all the other judges who heard the two cases. Many of those judges are still on the Bench. They are unlikely to have changed their minds.
· The provisions of the present Constitution which protect freedom of expression are just as strong and far-reaching as those in the former Constitution. Although the present Constitution excludes “malicious injury to a person’s reputation or dignity” from protection, section 31(a)(iii) does not require malice – a point made by the Supreme Court in its judgment – and so is too wide to fall within the exclusion.
Neither of the above two arguments has any substance, therefore.
Should the Three Persons be Remanded?
A magistrate can remand an accused person, either in custody or on bail, if the magistrate considers there are reasonable grounds to suspect the person has committed a criminal offence. If what the person is alleged to have done does not amount to an offence then there can be no reasonable grounds to suspect that he or she has committed one.
The three accused persons are charged with contravening section 31(a)(iii), a statutory provision that does not exist and never has existed. They cannot be remanded on that charge.
Nor indeed should they have been arrested on such a charge because, like remands, arrests can only be made if there are reasonable grounds to suspect that the arrested person has committed, is committing or is about to commit a criminal offence. If the suspected conduct does not constitute an offence there can be no lawful arrest and the arresting officer may be liable to a civil suit for unlawful arrest.
And finally, they should not be prosecuted on a charge of contravening section 31(a)(iii) because if a prosecution is to be lawful there must be “reasonable and probable cause” to believe that the accused person committed the offence charged. If the offence charged is not an offence there cannot be reasonable and probable cause and the prosecutor may be sued for malicious prosecution.