CLAIM: Zimbabwean lawyer and spokesperson for main opposition party, CCC, … has been fined US$500 after conviction using a law that doesn’t exist, and accused of a crime that doesn’t exist.
SOURCE: Twitter
VERDICT: Partly true
CCC Spokesperson Fadzayi Mahere was on April 5 convicted for contravening Section 31(a)(iii) of the Criminal Law and Codification Act: – communicating false statements prejudicial to the state with the real risk or possibility of undermining public confidence in a law enforcement agency, Prison Service or the Defence Force of Zimbabwe.
Fadzayi Mahere. Credit: Voice of America
This led to a huge debate on social media as users debated on the section of the law that has been used for her conviction here, here and here.
The story was also carried by major media houses here, here and here.
The major claim that was being made was that she had been charged and convicted on a ‘non existent law’.
The truth is somewhat stranger than most tweeps realised.
This claim has been rated as partly true – she was not charged with a non-existent law. She was charged on an existing law but was, curiously, convicted on a non-existent law.
The curious case of Mahere
Mahere’s lawyers, the Zimbabwe Lawyers for Human Rights, say that Mahere was charged with an existing law – Section 31(a)(i):- communicating falsehoods realising the real risk or possibility of inciting or promoting public violence or endangering public safety.
However, in making a judgement, the magistrate acquitted her on this charge and instead convicted her on Section 31(a)(iii) an offence that was declared void by the Constitutional Court and declared invalid by the High Court in a case against Hopewell Chin’ono in 2021.
So, how did this happen?
Section 31 of the Criminal Law and Codification Act has garnered a lot of debate over the years. It has also been subject of litigation.
The section deals with the publication or communication of falsehoods. It reads:
“31 Publishing or communicating false statement prejudicial to the State:
Any person who, whether inside or outside Zimbabwe –
(a) Publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of –
(i) inciting or promoting public disorder or public violence or endangering public safety; or
(ii) adversely affecting the defence or economic interests of Zimbabwe, or
(iii) undermining public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe or
(iv) interfering with or disrupting any essential service; shall whether or not the publication or communication results in a consequence referred to in subparagraph (i), (ii), (iii) or (iv) be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding twenty years or both.”
However, contrary to popular belief, it was not the whole of Section 31 that was the subject of a constitutional challenge.
Constantine Chimakure, Vincent Kahiya and ZimInd Publishers had been charged with Section 31(a)(iii) which deals specifically with having committed the crime of publishing or communicating a false statement prejudicial to the State – undermining public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe.
They went to the Constitutional Court seeking a determination of a question of validity of statutory provisions for the restriction of the exercise of freedom of expression brought to the Supreme Court in terms of s 24(2) of the Constitution of Zimbabwe. The question was whether or not Section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Cap. 9:23) contravened the declaration of the fundamental right to freedom of expression under s 20(1) of theConstitution.
The Constitutional Court ruled that the requirement that there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by the measure applied by the State in restricting the exercise of freedom of expression was not met; and subsequently Section 31(a)(iii) of the Criminal Code should was declared to be in contravention of s 20(1) of the former Constitution.
However, of note is that the rest of Section 31 remained intact.
Geoffrey Feltoe and John Reid-Rowland, in an article, ‘Chilling freedom of expression to the bone with a chilling offence: Case note on Chimakure & Others v Attorney-General 2013 (2) ZLR 466 (S)’ argue that the ‘whole of s 31 must be reconsidered and, if a penal provision is to be retained at all, it must not destroy the right to freedom of expression; it must be one which is justifiable in a democratic society where freedom of expression is greatly valued’.
Conclusion
The claim that ‘Zimbabwean lawyer and spokesperson for main opposition party, CCC, … has been fined US$500 after conviction using a law that doesn’t exist, and accused of a crime that doesn’t exist’, has been rated as partly true. While it is not true that she was charged with a non-existent law, it is true that she was convicted on a non-existent law. Only part of Section 31 was declared unconstitutional. The rest is yet to be subjected to a constitutional test.
Note: The fact check relies on ZLHR on the charges, as the court documents were not publicly available at the time of publishing. Once they are, the article will be updated as needed.
