(Last Updated on September 27, 2015 by Editor)
With successive Constitutional Court (ConCourt) orders declaring large swaths of the loathed Access to Information and Protection of Privacy Act (Aippa) ultra-vires the Constitution, last week’s landmark ruling by the apex court to outlaw the obnoxious Section 121 of the Criminal Law (Codification and Reform) Act (Code) was a dent into the ironman’s armour.
The Code, as it is commonly known, is an upgrade of Rhodesia’s equally notorious Law and Order Maintenance Act (Loma) and has been used by Mugabe’s regime, particularly Section 121, which provided for further detention of political opponents even after the courts would have granted them bail.
In June, Chief Justice Godfrey Chidyausiku ruled that criminal defamation laws were unconstitutional.
“Having regard to all of the foregoing, I take the view that the harmful and undesirable consequences of criminalising defamation, viz the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect,” reads the June judgement, which was hailed by the country’s under-siege media fraternity .
“Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat mischief of defamation … In short, it is not necessary to criminalise defamatory statements.”
However, a prominent constitutional lawyer, who declined to be identified, warned against pre-mature celebration over the recent ConCourt rulings.
“We need to be guarded in how we view this even though these are progressive judgements. The ConCourt is not as progressive as we would want it to be. These judges have not issued an order that really rocks Zanu PF. Most of these, if anything, are cosmetic,” he said.
“[Justice] Chidyausiku has unfinished business, his major assignment will come once Mugabe is gone; to declare who will be president because while the Constitution says within 90 days the party in government has to choose a successor, it does not specify how. It will only need someone in Zanu PF to submit a counter-name then all hell will break loose and Justice Chidyausiku will then have to play kingmaker.”
Bitter foes within the ruling party are engaged in an acrimonious battle to control the ruling party as they prepare for Mugabe’s inevitable departure either by natural wastage or resignation, which critics say is highly unlikely.
While issuing the latest order, Justice Chidyausiku ripped into the State for abusing the controversial Section 121.
“You derive pleasure in keeping the person in custody for that. It is more sadistic than legal. On what legal basis is a person denied his liberty for seven days? Prison is not a five-star hotel. Surely, your sense of justice should make you think it’s untenable,” the Chief Justice charged at National Prosecuting Authority (NPA)’s Edmore Makoto before declaring the section illegal.
The section empowered the NPA and the police to revoke bail granted by magistrates in matters involving mostly opposition parties and other people perceived to be anti-establishment.
Suspects would then be remanded in custody for seven days to allow the prosecution to “investigate further”.
Opposition People’s Democratic Party leader Tendai Biti, a former Finance minister, said the judgement had been long in coming.
“It is a progressive and long overdue judgement. Section 121 of the Code was unlawful and was blatantly abused by Zanu PF against its opponents with approval from State institutions such as the police. The list of Section 121 victims reads like a who-is-who of the country’s opposition leaders and activists. It is now important that the ConCourt continues on this trend to help the people of this country make incremental rights gains against this regime,” Biti said.
Zimbabwe Lawyers for Human Rights (ZLHR) programmes manager Dzimbahwe Chibgwa said Section 121 had effectively disempowered the judiciary and allowed the state to play “both player and referee”.
The opposition MDC-T, whose activists have borne the brunt of the legal instrument celebrated the judgement.
“The MDC would like to express its deep pleasure and joy at this ground-breaking ruling by the Constitutional Court of Zimbabwe. We would also like to take this opportunity to heartily congratulate the legal team of Mandevere Marufu and Kudzayi Kadzere who argued the case on behalf of the applicants in the highest court of the land,” Obert Gutu, the party’s spokesperson said in a statement.