THE ruling Zanu PF party’s bid to push through parliament harsh new legislation that makes it an offence for anyone to make an abusive statement about President Robert Mugabe or an acting pr
esident has been blocked by the Parliamentary Legal Committee (PLC).
Zanu PF wanted to criminalise the utterance of an “abusive, indecent, or obscene statement” through the Criminal Law (Codification and Reform) Bill.
The proposed law, part of a slew of Bills that government wants passed into law before December 1 when Zanu PF begins its National People’s Congress, was described as unconstitutional by the PLC.
The PLC, chaired by the Movement for Democratic Change (MDC)’s Professor Welshman Ncube, said the Bill was in contravention of the Declaration of Rights.
But with its overwhelming parliamentary majority, Zanu PF attempted to suspend parliament’s standing orders, which requires a three-week delay to redraft the laws and bring them in line with the constitution.
It was resolved that a decision on the Bill be deferred to give members more time to properly consider its provisions. The PLC said provisions of clauses 22, 33, 37, 46 and 182 (2) of the Bill were ultra vires the Bill of Rights.
Clause 33(2) (b) of the Bill sought to make it illegal for anyone to make abusive, indecent or obscene statements about or concerning the president or an acting president or the president’s office.
The Bill said any person in contravention of this provision “shall be guilty of undermining the authority of or insulting the president and (is) liable to a fine not exceeding level six ($400 000 fine) or imprisonment for a period not exceeding one year or both”.
However, the committee raised objections saying this provision was unconstitutional.
“It is your committee’s finding that, given the nature of the Presidency in Zimbabwe, which is a public elected political office, to ring-fence that office against criticism amounts to derogation from fundamental freedoms protected by the Constitution, particularly with respect to the freedom of expression,” Ncube said.
The PLC, which also comprises Zanu PF MP Kumbirai Kangai and the MDC’s Innocent Gonese, said an abusive statement could not be criminalised in a political context.
It said although indecent and obscene statements could be properly criminalised, clause 33 (b) which criminalises “abusive” statements was unconstitutional. Clause 22 attempts to further restrict citizens’ right to freedom of expression, assembly and association by outlawing boycotts, civil disobedience or resistance to any law.
“A provision that seeks to derogate from these fundamental freedoms cannot be constitutional unless it is one of the exceptions provided for in the constitution,” Ncube said.
“In consequence your committee finds clause 22(1)(b) unconstitutional to the extent that it can be read to mean threats of civil disobedience if unaccompanied by threats of force are criminal.”
Clause 37 unduly restricts the right of persons to participate in public gatherings, meetings and demonstrations, which are legitimate means of exercising their freedoms protected by sections 20, 21 and 22 of the constitution.
Clause 46 gives a list of acts that are prohibited. These include making noise, playing a musical instrument or a wireless in a public place, shouting or screaming in a public place or interfering with the peace and quiet of the public.
Ncube said the specific limitations to human conduct were “unconstitutional, extreme and unjustifiable”.
“The provisions of clause 46 are also in violation of Section 20(1) of the constitution which protects freedom of expression in that they criminalise the possible use of this freedom to express legitimate criticism of the police force,” Ncube said.
Clause 182(2) of the Bill criminalises refusal to testify in a court proceeding for whatever reason.