ARTHUR MUTAMBARA
vs
THE ATTORNEY GENERAL OF ZIMBABWE
COMMISSIONER GENERAL OF POLICE
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,
GWAUNZA JCC, GARWE JCC, GOWORA JCC,
HLATSHWAYO JCC, GUVAVA JCC & MAVANGIRA AJCC
HARARE, 14 MAY 2014 & NOVEMBER 18, 2015
Z. T. Chadambuka, for the applicant
S. Fero, for the 1st respondent
No appearance for the 2nd respondent
GWAUNZA JA: This application followed a referral of the matter to this Court by the Magistrates Court in terms of s 24 (2) of the former Constitution of Zimbabwe (“the old Constitution”).
The applicant sought an order declaring s 31 (a) (iii) of the Criminal Law (Codification and Reform) Act, (Chapter 9:23) (“the Code,”) and his arrest in terms of that section, to be in violation of the Constitution, hence null and void. The applicant sought a similar order in relation to s 182 (1) of the Code, for its alleged violation of s 20 (1) of the Constitution. At the hearing of this matter, the applicant abandoned the relief relating to s 31 (a) (iii) of the Code on the basis that the section had already been struck down as being unconstitutional in the case of Chimakure v Attorney General SC 14/2013. As a result, no reference will be made in this judgment to the charges preferred against the applicant under this Section.
The facts of the matter may be summarised as follows. On 20 April 2008, the applicant, who was then involved in the country’s politics and was a leader of an opposition party, wrote and caused to be published in an independent weekly newspaper, an article entitled “A shameful betrayal of national independence.” Jointly with a director and the editor of the newspaper in question, the applicant was arrested on 1 June 2008 on allegations that they had contravened s 182 (1) (a) of the Code, in addition to s 31 (a) (iii) of the same Act. In relation to the former, the applicant was alleged to have published an article that was contemptuous of the High Court of Zimbabwe. The offending words in the article were:
“In terms of the House of Assembly (sic), the agenda is to seize at least nine seats from the opposition through recounts and court action leading to re-runs. This explains the 23 recounts ZEC had instituted. There is clearly criminal collusion between ZEC and ZANU PF. To add insult to injury, this unlikely marriage is dutifully consummated by a compliant and pliable judiciary typified and exemplified by Judge Tendai Uchena’s unreasonable and thoughtless decision not to order ZEC to release the Presidential results.” (my emphasis)
