Court Watch 06-2023 Challenge to the "Patriot Act"


[15th November 2023]

Challenge to the “Patriot Act”

The so-called “Patriot Act” – the Criminal Law (Codification and Reform) Amendment Act, 2023, to give it its proper title – was published in the Gazette on the 14th July as Act 10 of 2023.  It can be accessed on the Veritas website [link] and so can our commentaries on it:  Bill Watch 1/2023 of the 11th January [link] and Bill Watch 28/2023 of the 28th July [link].

The “patriotic” part of the Act inserts a section 22A into the Criminal Law Code which creates a new crime, wilfully injuring the sovereignty and national interest of Zimbabwe.  The crime is committed by citizens and permanent residents who “actively partake” in meetings with the object of either:

·        considering or planning armed intervention in Zimbabwe by a foreign government [section 22A(2)(a)] or

·        subverting, upsetting, overthrowing or overturning the constitutional Government of Zimbabwe [section 22A(2)(b)].

Persons who participate in the first kind of meeting, the section 22A(2)(a) type, are liable to be sentenced to death or life imprisonment, while participants in the second type of meeting, the section 22A(2)(b) type, are liable to imprisonment for up to 20 years and in addition may have their citizenship or residence permit cancelled and may be banned from voting and holding public office for up to fifteen years.

The Challenge to the Act

A Mr Freeman Chari has filed an application in the Harare High Court challenging the new section 22A(2)(b), which penalises attending meetings with the object of subverting, upsetting, overthrowing or overturning the Government.  He maintains that this violates his right to freedom of expression (section 61 of the Constitution) and his right to participate in political activities (section 67 of the Constitution).  In addition, he says:

·        The crime created by section 22A(2)(b) is excessively vague.  Crimes should be defined clearly so that people can ascertain with reasonable certainty what they can and cannot do.

·        The crime does not distinguish between lawful acts aimed at changing the Government and unlawful acts that will overthrow the Government.  Instead, section 22A(2)(b) seems to be aimed at instilling in citizens blind loyalty towards the Government of the day.

·        Although section 86 of the Constitution allows political rights and freedom of expression to be limited by laws that are fair, reasonable, necessary and justifiable in a democratic society, section 22A(2)(b) falls far short of this and is invalid.

The Government’s Response

The former Attorney-General has filed papers opposing the application, contending:

·        Even though the words “subverting, upsetting, overthrowing or overturning” in section 22A(2)(b) are not defined, when read together they clearly suggest unlawful conduct.

·        The section does not penalise mere criticism of the Government.

·        It does not in any way violate political rights or freedom of expression.

The Government’s contentions are not very convincing.  The words in section 22A(2)(a) cannot be blurred together as if they collectively mean something vaguely illegal:  it is a rule of statutory interpretation that different words in a statute should be given different meanings, and in criminal statutes those meanings must be very clear.  If all the words in section 22A(2)(b) are supposed to connote illegal conduct, what separate meaning should be given to each one of them?  Moreover, section 22A does not have a provision along the lines of section 21(3) of the Criminal Code, which says that the crime of treason does not extend to “the doing of anything by lawful constitutional means”.  If that clarification was necessary for the crime of treason, the same clarification should have been made for the new section 22A.

Further Challenges

Mr Chari’s application challenges only section 22A(2)(b), and only on the ground of its vagueness.  There are several other reasons for challenging the whole of section 22A, as we pointed out in Bill Watch 1/2023 which we mentioned earlier.  For example:

·        It provides for the death penalty to be imposed for participating in a meeting.  This violates section 48 of the Constitution, which allows the death penalty to be imposed only for murder.

·        The additional penalties of deprivation of citizenship and prohibition from voting are also unconstitutional.

·        The whole section, not just 22A(2)(b), is vague and the vagueness is contrary to the rule of law.  It also infringes accused persons’ right to a fair trial.

Veritas is preparing its own challenge to the Act, and no doubt there will be others.

The Act is shockingly bad and the sooner a court strikes it down as unconstitutional the better.

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