BILL WATCH 28/2023

[20th July 2023]

The “Patriot Act” : The Crime of Wilfully Injuring the
Sovereignty and National Interest of Zimbabwe

The Criminal Law (Codification and Reform) Amendment Act 2023, commonly called “the Patriot Act”, was published in the Gazette last Friday, the 14th July, and came into force on that date.  It can be accessed on the Veritas website [link].

The Act creates a new crime, “wilfully injuring the sovereignty and national interest of Zimbabwe”.  The crime is expressed in convoluted language which is difficult to understand, and there is a real danger that law enforcement authorities will interpret it too broadly.  Hence concern has been expressed, by Veritas amongst others, that the crime will stifle political debate and have a chilling effect on the activities of civil society organisations.

Now that the Act is in operation we think it will be useful to outline as simply as we can what the new crime will prohibit people doing.

First, though, a couple of disclaimers:

As we said, the language of the Act is difficult to understand.  We cannot guarantee we have understood it correctly.

We are not going to examine the new crime’s constitutionality.  We have said previously that we consider it is unconstitutional and void [see Bill Watch 1/2023 – link] and we remain of that view, but for the purposes of this outline we shall take the crime at its face value.

Outline of the Crime

The crime will be committed by citizens and permanent residents of Zimbabwe who participate in meetings to consider or plan either:

1.  armed intervention in Zimbabwe, or subverting or overthrowing its government, or

2.  implementing or extending sanctions or trade boycotts against Zimbabwe.

The two types of meeting are treated differently and carry different penalties, so we shall deal with them separately.

1. Meeting to Plan Armed Intervention or Subversion

A citizen or permanent resident of Zimbabwe who actively participates in a meeting, in Zimbabwe or elsewhere, to consider or plan:

armed intervention in Zimbabwe by a foreign government, or

subverting or overthrowing the Zimbabwean government,

is guilty of an offence and liable to:

death or life imprisonment, where the meeting considered or planned armed intervention

up to 20 years’ imprisonment, where the meeting considered subverting or overthrowing the government.

2. Meeting to Plan Sanctions or Boycott

A citizen or permanent resident of Zimbabwe who actively participates in a meeting, in Zimbabwe or elsewhere, to consider or plan sanctions or a trade boycott against Zimbabwe is guilty of an offence and liable:

to a fine of up to US$12 000 or imprisonment for up to 10 years, or both, or

if the offence is aggravated [we shall explain this later] and the prosecutor so requests, to any or all the following:

termination of citizenship, unless the person is a citizen by birth or descent

cancellation of the person’s permanent residence, if the person is not a citizen

disqualification, for between five and 15 years, from being registered as a voter or voting

prohibition from holding public office for between five and 15 years.

Points to note:

For the purposes of the crime:

• A meeting is defined as any communication between two or more people, whether in person or virtually.  A written communication would not count as a “meeting”, but perhaps a telephone call could.
• A meeting may be initiated by the citizen or permanent resident or by a foreign agent.
• A citizen or permanent resident may participate in a meeting in person or through an agent.
• A person will not commit an offence by participating in a meeting:
  • unless he or she knows or has reason to believe that the purpose of the meeting is to plan armed intervention, subversion, sanctions and so on, or
  • if he or she tries to discourage the armed intervention, subversion or sanctions that are being planned.
• Sanctions and trade boycotts will be regarded as directed at Zimbabwe even if they are targeted at particular individuals, so long as they indiscriminately affect a substantial section of Zimbabwe’s people.
• The offence of participating in a meeting to plan sanctions or boycotts will be regarded as aggravated:
  • if it is proved that the actions of the accused person resulted in sanctions or a boycott, or that the accused made or endorsed a false statement at the meeting, and
  • even if the meeting did not bring about sanctions but instead induced a foreign government to issue a non-binding advisory which had the same effect as legal sanctions.      

Secondly, the language in which the offence is framed is complicated, vague and difficult to understand.  If for example an opposition activist has a conversation on WhatsApp with a member of a foreign legislature and discusses the effect of sanctions on the Zimbabwe Government’s attitude towards opposition parties, does that activist commit an offence under the new section?  It is hard to say.  What is certain is that the activist, if regarded as a threat to the Government or ruling party, is likely to be arrested and put on trial for the offence.  The same applies to a politician who addresses a rally and urges foreign governments to extend sanctions against the country:  the politician will almost certainly be arrested even though his or her conduct would not constitute an offence under the Act [assuming no foreign agents are at the rally].  The new offence, in short, is liable to be used to suppress dissenting political voices.

That is probably its real purpose.