COURT WATCH 10/2013
[17th July 2013]
State v MDC-T Youth Leader Solomon Madzore
Charged with Undermining the Authority of or Insulting the President
MDC-T Youth Leader Solomon Madzore was arrested on Thursday 2nd May 2013 for allegedly undermining the authority of or insulting the President contrary to section 33(2)(a) and (b) of the Criminal Law (Codification and Reform) Act ["Criminal Law Code"]. The allegation was that during a pre-election rally in Mbire, Mashonaland Central province, he called the President a “limping old donkey” who is blocking Prime Minister Morgan Tsvangirai from doing his work in the inclusive government. He denies the allegation. Mr Madzore, as well as being the party’s youth leader, is the MDC-T candidate for Dzivaresekwa National Assembly seat in the coming election. Following his arrest, Mr Madzore was transferred to the Bindura Central Police Station where he was held for four days before he was brought to court on Monday 6 May 2013.
Mr Madzore had previously spent over 400 days in custody, having been charged, along with 28 other MDC activists, with killing a police officer [all deny the charge]: their trial is still ongoing; see Court Watch 9/2013 of 10th July. Mr Madzore also spent over 70 days in custody in 2007 on petrol bombing attack charges: these charges were later dropped. Mr Madzore and others said they were tortured in custody during this time.
Magistrate’s bail order blocked by prosecutor
On Monday 6 May 2013, legal representative Charles Kwaramba applied for Mr Madzore to be released on bail at Bindura Magistrates Court. Magistrate Elisha Chingono allowed the application and granted bail of US$100. Prosecutor Munyaradzi Mataranyika immediately invoked section 121 of the Criminal Procedure and Evidence Act however, which allows suspects to be held for up to a further seven days pending the State lodging a High Court appeal against the grant of bail. Mr Madzore was accordingly held in custody pending the outcome of the State’s appeal.
Note: Section 121(3) says: “A decision by a judge or magistrate to admit a person to bail shall be suspended if, immediately after the decision, the judge or magistrate is notified that the Attorney-General or his representative wishes to appeal against the decision, and the decision shall thereupon be suspended and the person shall remain in custody.” The prosecutor does not have to justify invoking section 121(3) by showing that there is merit in a State appeal or establishing a risk of the accused’s absconding; his or her statement of the wish to appeal is enough. If a State appeal is lodged within 7 days, the person is held in detention until the outcome of the appeal is determined. If before the 7 days is up, the State notifies the judge or magistrate that they do not intend to appeal, the accused must be released immediately. If there is no such notification and the 7-day period runs out without a State appeal being lodged, the accused must be released immediately.
The excessive use of section 121(3) by prosecutors
This was highlighted in Court Watch 8/2012 of 25th April 2012, which referred to the statistics compiled by Zimbabwe Lawyers for Human Rights showing the State lodged appeals in less than 25% of section 121(3) cases. Of these only one case was successful – and even that only in partially altered bail conditions. In all but one of the cases, therefore, the accused persons had been kept locked up for up to seven extra days for no good reason. This record has attracted condemnation from the legal profession, human rights defenders and on at least one occasion from a High Court judge when rejecting a State appeal against the granting of bail by a magistrate. Supreme Court applications for section 121(3) to be struck down as unconstitutional have failed to reach the stage of a court hearing.
Comment: Section 121(3) is unlikely to survive for long now that the new Constitution’s Declaration of Rights is in force. Section 80 of the new Declaration of Rights, which lists the rights of arrested and detained persons in more detail than the former Declaration, provides that a person who is arrested “must be released unconditionally or on reasonable conditions, pending a charge or trial unless there are compelling reasons justifying their continued detention”. Section 121(3), which requires no justification at all from the State, is obviously inconsistent with that.
Madzore’s bail confirmed by High Court
On Tuesday 14th May, Mr Madzore appeared in the Magistrates Court in Bindura for a remand hearing and was remanded in custody until 28th May. Also due on the 14th May was the High Court hearing of the State’s appeal against the magistrate’s decision granting Mr Madzore bail, but this was postponed till 15th May. On that day Justice Chatukuta dismissed the State’s appeal and ordered his release on bail as granted by the magistrate.
Trial set down for 18th July
Mr Madzore’s trial has now been set down for 18th July at Bindura Magistrates Court. It remains to be seen whether the trial will proceed or be deferred pending the hearing and determination of a constitutional application challenging the validity of the provision under which Mr Madzore has been charged.
Constitutional Court Application
On 8th July 2013, an application was lodged with the Constitutional Court on Mr Madzore’s behalf by his representative Tawanda Zhuwarara for the offence provided for under section 33(2) of the Criminal Law (Codification and Reform) Act to be struck down on the basis that it violates Mr Madzore’s constitutional rights under the new Constitution, including: his right to campaign freely and peacefully for a political party or cause [section 67(2)(b)]; his freedom of opinion and freedom to propagate and give expression to that opinion [section 60(1)(a) and (b)]; and his freedom to communicate his ideas and other information [section 61(1)(a)].
Section 33 of the Criminal Law Code sets out the offence of “undermining the authority of or insulting President” as follows:
“(2) Any person who publicly, unlawfully and intentionally—
(a) makes any statement about or concerning the President or an acting President with the knowledge or realising that there is a real risk or possibility that the statement is false and that it may—
(i) engender feelings of hostility towards; or
(ii) cause hatred, contempt or ridicule of;
the President or an acting President, whether in person or in respect of the President’s office; or
(b) makes any abusive, indecent or obscene statement about or concerning the President or an acting President, whether in respect of the President personally or the President’s office;
shall be guilty of undermining the authority of or insulting the President and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.”
A controversial provision
Zimbabwe Lawyers for Human Rights have reported a dramatic increase in the number of people being arbitrarily charged under this provision, having attended to at least 65 such cases since 2010. Due to continued delays in the justice delivery system, most of these cases are still pending, with only two having been finalized, both resulting in acquittals. In other instances, clients have been removed from remand due to failure by the State to prosecute timeously.
First Challenge to Constitutionality of this Offence under New Constitution
The constitutionality of this provision has been raised in court challenges on several previous occasions, but none of these challenges has yet resulted in a determination by the Supreme [now Constitutional] Court. Douglas Mwonzora and Pishai Muchauraya’s applications to the court on this issue were stayed and returned to the lower courts for clarification of the factual circumstances behind their applications. Solomon Madzore’s application is the first challenge to this provision brought to the Constitutional Court in terms of the new Constitution.
The fundamental right in question is freedom of expression, now protected by section 61 of the new Constitution, and previously enshrined in section 20 of the former Constitution. The essential complaint is that freedom of expression is infringed because the Criminal Law Code’s provision is excessively widely framed, leaving members of the public uncertain about what can and cannot safely be said about the President, and therefore subject to arbitrary arrest by police officers placing their own interpretation on the provision. This uncertainty has a chilling effect on legitimate political discourse in a country where the President, who is both the active head of a political party and also the Head of State and Government, enjoys freedom to castigate his political opponents in strong terms and does not hesitate to do so.
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