By Hatirebwi Nathaniel Masikati
Zimbabwe President Mugabe is by far the single highest complainant in Zimbabwe's criminal courts over the ludicrous crime of citizens demeaning or insulting his person or his office.
There are evident signs that Zimbabwe is still controlled by law enforcers who are compromised in favour of Zanu PF.
Recent arrests and arraignments of MDC-T MP’s and activists for breaching the notorious section 33 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] suggest that the harassment of Zanu PF political opponents by law enforcement officers will be increasingly relied upon by Zanu PF to disturb political cohesion in political formations with the greatest potential to unseat Zanu PF in any constituency.
Whereas in most states criminal prosecutions arise from complaints filed by ordinary members of the citizenry in Zimbabwe the majority of prosecutions are a result of complaints by State institutions for crimes against the President or the State which is indicative of the commonly held view that the State believes it is above the law and not vice versa.
Complainants or the aggrieved parties in most criminal litigation cases are either CIO operatives, the Police, the AG or the Military and the Presidency as opposed to the generality of the populace for which the laws were purportedly crafted to protect.
Effective July 01, 2006 Zimbabwe criminal acts from various enactments have been consolidated in the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Even then, the consolidation does not preclude criminal charges arising from other statutes and enactments as the consolidation clearly states at section 4 that;
"4 Application of Code to other enactments
(1) Subject to subsection (2), nothing in this Code shall affect the liability, trial and punishment of any person for a crime in terms of any other enactment.
(2) Unless otherwise expressly provided in the enactment concerned, section five and Chapters II and XII to XVI of this Code shall apply to the determination of criminal liability of a person in terms of any other enactment."
Despite the sterling efforts to proactively communicate its laws Zimbabwe has for decades been burdened by accusations of failing to uphold the rule of law.
The reason for that is because there is an apparent religious commitment on the part of the State to rule by the law which manifests as selective repression and suppression instead of upholding the rule of the law which would project State consistency and fairness in criminal litigation.
Globally laws are contested and continuously updated from outcomes of such contests when the laws are found to be inconsistent with changing societal values.
While the Zimbabwe laws are not immune to these challenges and have been consistently found wanting by the numerous Constitutional tests on their validity that lone is not the bone of contention giving the country a bad reputation in upholding the rule of law.
Rather it is the manner in which the laws are selectively applied and retrogressively revised to deal with undesired political events that has been the source of the accusations.
The Zimbabwe citizens like their counterparts globally have nothing personal against law enforcement and institutions but are disgusted at the apparent and inexplicable bias that law enforcement institutions treat them when they seek remedies from the judicial system.
One such area is the misunderstanding that is caused by law enforcers when they classify certain prescribed criminal indiscretions as politics and others with similar elements as codified criminality.
When approximately 50 Zanu PF youths led by the party’s provincial youth chairperson Bhutho Gazi recently invaded and emptied Zambeziya block of flats situated on the corner of Fort Street and Leopold Takawira in Bulawayo, owned and used as offices by Martin Robinson the Bulawayo Police to whom a complaint had been filed about the incident were indifferent about the crime.
Bulawayo police spokesperson Mandlenkosi Moyo confirmed receiving the report of the incident ruled out further investigation of the matter when he stated; “Police are not going to be involved as this is a political case.”
But the codified laws of the country are categorical about the protection of property rights of the citizenry.
Section of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is tacit and unambiguous about the criminality of such actions as displayed by the Zanu PF youths at Zambeziya block of flats recently and it boggles the mind how the Police can get away by simply discounting further investigation of the reported matter by simply alleging it is a political matter as if to say politicians do not commit crimes when politicking.
The section states that;
“Any person who, intentionally and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable*
(a) to a fine not exceeding level thirteen or not exceeding twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2); or
(b) in any other case, to a fine not exceeding level ten or not exceeding twice the value of any property destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding ten years, or both….”
The same section goes on to list aggravating circumstances that can occur during the commission of this crime in subsection 2.
Meanwhile in Mashonaland Central MDC-T provincial youth chairman for the province, Tonderai Samhu, appeared in court on Tuesday facing allegations of insulting Robert Mugabe under the same codified laws the police are refusing to apply on Zanu PF politicking in Bulawayo.
Section 33 of the same codified laws is equally tacit and unambiguous about the criminality of undermining the authority of or insulting President when it states at subsection 2 that;
"(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."
The Police arraigned the MDC-T youth provincial chairman before a Bindura Magistrate for insulting and demeaning the President and for organizing a political rally without police authority. His case was postponed to 1st July.
In his defence the MDC-T youth chairman claims that he was politicking through leading chanting of the well known party slogan which reflects the political intentions of his party.
The slogan he chanted that the Police deemed criminal was; ‘Mbavha bvisa (remove thieves), Mugabe bvisa (remove Mugabe), ZANU PF bvisa (remove ZANU PF).
This raises questions about the impartiality of the law enforcers.
A Provincial Party Youth Chairperson is arraigned before the courts for politicking through chanting political slogans demeaning of the head of rival political party who is also the national President but when elsewhere in the same country a similarly positioned member of the National President’s party politics by invading and looting privately owned properties- if at all that can be classified as politicking- does not attract even preliminary investigations into his conduct by the same Police force.
It raises eyebrows that there is more to the arrest and arraignment of the accused and the Police refusal to investigate the other accused than the politics cited by the Police as the reason for not taking further action which they are known to have taken against the other.
Yet another example is that of the Tertiary and Higher education Minister Dr Stan Mudenge who recently incited violence last week when he addressed a meeting attended by about 800 people at Zimuto in Masvingo and instructed local traditional leaders to force MDC supporters to return to Zanu (PF) before the next election.
The codified laws of the country prescribe intimidation and incitement criminal offences at section 45 and 187 respectively.
Section 45 reads;
“Any person who, intentionally and by means of an express or implied threat of unlawfully inflicted harm, compels or induces another person;
(a) to do something which that person is not legally obliged to do; or
(b) to refrain from doing something which that person is legally entitled to do;
shall be guilty of intimidation and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.”
At section 187 the act reads;
“(1) Any person who, in any manner, communicates with another person;
(a) intending by the communication to persuade or induce the other person to commit a crime, whether in terms of this Code or any other enactment; or
(b) realising that there is a real risk or possibility that the other person may be persuaded or induced by the communication to commit a crime, whether in terms of this Code or any other enactment;
shall be guilty of incitement to commit the crime concerned.
(2) It shall be immaterial to a charge of incitement that;
(a) the person who was incited was unresponsive to the incitement and had no intention of acting on the incitement; or
(b) the person who was incited did not know that what he or she was being incited to do or omit to do constituted a crime.”
Uniformed and civilian clothed law enforcement and intelligence officers are always present at all gatherings addressed by Ministers and or senior politicians and they have been known to file complaints against those that demean or insult the President at such gatherings as happened to Tonderai Samhu in Mashonaland West.
The same officers who arrested Samhu for breaching the law had no such courage to arrest Minister Mudenge for committing the offences of inciting and intimidating political opponents and traditional leaders.
There are several MDC-T atavists facing charges reported by the law enforcers while in attendance at political gatherings and rallies similar to the one at which Minister Mudenge made his threats and incited political violence against those that failed to heed his order to rejoin Zanu PF.
Co-Home Affairs Minister Giles Mutseyekwa must be commended for initiating investigations against Minister Mudenge.
Our only fears are that so many similar indications from him about perpetrators of vile political violence nearing arrest have not materialised and Minister Mudenge will not be unduly worried about the threatened investigations.
Yet we must still urge on Minister Mutseyekwa not to give up and if anything to personalise and prioritise the follow up on investigations into Minister Mudenge’s alleged criminal comments.
Nothing has greater potential to contribute to national healing and discourage violent politicking than seeing a Minister from a violent political party like Zanu PF being arraigned before the courts over violent and reckless political statements uttered to incite violence.
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