Common Law With Mike Murenzvi

“Prejudice and passion and suspicion are more dangerous than the incitement of self-interest or the most stubborn adherence to real differences of opinion regarding rights.”

― Elihu Root

Over recent weeks, a number of prominent and ordinary members of the public have been arrested or detained by security services on the grounds of inciting public violence. These arrests stem from the widely talked about 31 July 2020 demonstrations. In this article we look at some of the legal statutes surrounding these charges.

Participating in gathering with the intent to promote public violence, breaches of the peace or bigotry

This is the heading for section 37 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] or the Criminal Law Code. The vast majority of protesters and perceived protest leaders and promoters have been charged under this section with the results of their bail hearings ranging from denial to stringent bail conditions. The section speaks of three main focus points that I will address in turn.

Planning incitement

• Any person who acts together with one or more other persons present with him or her in any place or at any meeting with the intention or realising that there is a real risk or possibility of forcibly-
• disturbing the peace, security or order of the public or any section of the public; or
• invading the rights of other people

As long as a meeting takes place with the intention is to cause unrest (disturbing the peace) or there is a real risk of it resulting in the same, an offence will have been committed.

General incitement at a meeting or place

• Any person who acting together with one or more other persons present with him or her in any place or at any meeting performs any action, utters any words or distributes or displays any writing, sign or other visible representation that is obscene, threatening, abusive or insulting, intending thereby to provoke a breach of the peace or realising that there is a risk or possibility that a breach of the peace may be provoked

Here the act of incitement must be overt, whether by speech, action or image. It must be direct and without need for much interpretation for an offence to be committed.

Targeted incitement at a meeting or place

• acting together with one or more other persons present with him or her in any place or at any meeting utters any words or distributes or displays any writing, sign or other visible representation—
• with the intention to engender, promote or expose to hatred, contempt or ridicule any group, section or class of persons in Zimbabwe solely on account of the race, tribe, nationality, place of origin, national or ethnic origin, colour, religion or gender of such group, section or class of persons; or
• realising that there is a risk or possibility that such behaviour might have an effect referred to in subparagraph (i)

Here the act of incitement must be targeted at a specific section, group or class of persons in a manner commonly referred to as bigotry. It must be noted that political affiliation is not a protected class.

Where one is found guilty of any of the above, they may be liable to a fine not exceeding level ten (currently $24,000) or imprisonment not exceeding five years or a combination of both.

A key condition is that it doesn’t matter whether the actions leading to the charges were planned in advance or were spontaneous or whether they took place in public or in private, the mere participation in such is deemed a criminal offence.

Where a person acts on their own and not in a group, then they may only be charged with disorderly conduct.

What is incitement?

Section 187 of the Criminal Law Code defines incitement as communicating with another person with the intention to persuade or induce them or with the realisation that there is a real risk or possibility that they will be persuaded or induced to commit a crime.

The same section also says it is immaterial whether the other person responded to the incitement or had no intention of responding to the incitement or whether that other person did not know that what they were being incited to do was a crime.

Where do demonstrations fit in?

Sections 58 of the Constitution gives every person the right to freedom of assembly and association and, conversely, the right not to assemble or associate with others. Section 59 gives the right to demonstrate and present petitions peacefully.

The Constitution further provides for the limitation of these and other fundamental human rights in the interests of defence, public safety, public order, public morality, public health regional or town planning or the general public interest.

This means that a demonstration may be barred due to the limitations set out under the current COVID-19 lockdown regulations where they fall out of the conditions set within those regulations.

In a statement issued on 26 July 2020, the Zimbabwe Human Rights Commission issued guidance to the public as well as the State on the rights and obligations of both sides pertaining to the July 31 protest.

“In light of the impending protests scheduled for 31 July 2020, ZHRC urges all citizens of Zimbabwe to take into consideration the above cited constitutional rights limiting provisions as well as the COVID-19 Regulations which have been put in place for the prevention and containment of the pandemic. In exercising the right to demonstrate and petition, interests of public safety, public order and public health should be taken into account and be allowed to take precedence. Citizens should therefore in all instances exercise their rights responsibly and reasonably with due regard for the rights and freedoms of other persons and in particular the right to life which is absolute.

Notwithstanding the limitation justifications, ZHRC urges the Government to respect the rights of its citizens by refraining from use of various State machinery to instil fear and despondency. In that same vein, as a democratic and free State, the State through its apparatus should desist from inflicting constitutionally proscribed measures such as torture or cruel, inhuman or degrading treatment or punishment on dissenting political voices.”

These were the words of the commission charged with the protection and promotion of our constitutional rights short of the Constitutional Court. Yet, on 31 July 2020, we witnessed the arrest of several protesters who went out into their localities in small groups. It remains to be seen what the ZHRC will say on the matter. Until now, the immense power wielded by ZHRC has been on paper, with little tangible results to show for it.

The abyss stares back

Pre-independence Zimbabwe was characterised by crackdowns on political activities contrary to the ruling government. In 1960, the Law and Order Maintenance Act (LOMA) was enacted to “legally” stifle nationalists’ political activities. Many political leaders in post-independence Zimbabwe were victims of this repressive law that saw gatherings, and demonstrations banned and criminalised.

This law remained on the books until it was replaced by the Public Order and Security Act (POSA) in 2002, a law that was also widely castigated for similar reasons. POSA was also subsequently replaced by the Maintenance of Peace and Order Act (MOPA) in 2019, yet the weight of history still remains in force.

Freedoms are for all

Since the 2013 Constitution came into force, we have seen a change in approach in the application and interpretation of various laws. This process, however, is taking time, both practically and mentally.

The change needed to entrench constitutional freedoms for all requires a new type of thinking for all involved. A change from repression and reprisals to inclusivity and idea-sharing. Differences in opinion, ideas, and viewpoints do not diminish the value and worth of those ideas.

It is in exchanges and debates of those ideas that the future of the country is shaped to its best possible form. We should not fear opposing or contrary ideas but embrace them as a growing of the public discourse.

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The views expressed in this article are the author’s personal opinions and should in no way be interpreted to represent the views of any organisations that he is associated or connected with. Feedback is greatly encouraged in the comments section below.