Insult legislation affront to freedom of expression

via Insult legislation affront to freedom of expression – The Zimbabwe Independent February 6, 2015 by Chris Mhike

“(SIMBA) Makoni is like an all-too-ambitious frog which challenges a huge cow, but ends up bursting chichiyedza kufutumuka kuti chiyenzane nemombe (trying to puff itself up to the size of the cow),” said President Robert Mugabe in the run-up to the March 2008 harmonised elections (Sunday News February 24 2008).

Mugabe was insulting presidential poll candidate Makoni during an election campaign.

A few days earlier, the president had likened the Mavambo/Kusile/Dawn (MKD) leader to a prostitute, adding for good measure that “a prostitute could have done better because she has clients”.

Opposition politicians Morgan Tsvangirai, Ndabaningi Sithole, Bishop Abel Muzorewa and Joshua Nkomo have also been the subject of Mugabe’s sharp tongue in the hot Zimbabwean political fray.

One might say the practice of trading insults is commonplace or normal in politics, not just in Zimbabwe but the world over.

This point was given a degree of judicial confirmation last week at the Constitutional Court (ConCourt) of Zimbabwe by Chief Justice Godfrey Chidyausiku as he, together with fellow honourable judges of the country’s apex court, heard the constitutional matter wherein politician and Movement for Democratic Change (MDC-T) secretary-general Douglas Mwonzora challenged the constitutionality of the state’s 2009 decision to prosecute him for calling Mugabe “a goblin.”

With remarkable intelligence and guileless clarity, the Chief Justice tore into law officer Edmore Nyazamba’s argument: “You have to be an imbecile to believe that the president is a goblin.” Chidyausiku is also quoted as having said: “Politicians call each other names such as weevils and Gamatox; are you suggesting that you prosecute people for that?

“If somebody calls the president a weevil or Gamatox, are you going to prosecute that person? It is part of the trade of politics. Why are you bringing such matters to the Constitutional Court? The president is not a goblin and we all know that. Why should the law bother itself about it?”

Logically, and in terms of the provisions of the constitution of Zimbabwe, the honourable Chief Justice’s reasoning is completely sound, and admirably progressive. Section 61 of the constitution protects the citizen’s fundamental right of freedom of expression and modern jurisprudence (philosophy of law) dictates that the less we limit that freedom, the better.

Unfortunately, a number of media laws in Zimbabwe do limit freedom of expression to a considerable and lamentable extent. The Criminal Law (Codification and Reform) Act — the Criminal Code, under which Mwonzora had been arrested, the Access to Information and Protection of Privacy Act and the Interception of Communications Act, among an array of other toxic statutes, all limit the citizen’s ability to freely communicate and to self-express without the fear of adverse consequences.

In recent times, dozens of citizens have been arrested by the police and hauled before courts of law under Zimbabwe’s insult laws, that is, statutes that make it a criminal offence to “insult” the honour or dignity of public officials and other very-important-persons.

For instance, Section 33 of the Criminal Code criminalises statements that undermine the authority of or insult the president, while Sections 95 and 96 create the crimes of “criminal insult” and “criminal defamation.”

A few years back, Bindura lawyer Ernest Jena was dragged to court under the Criminal Code, for questioning whether or not an MDC-T slogan that referred to the president in derogatory terms was truly criminal. And, on the day the “goblin case” was heard, the ConCourt questioned yet another law officer from the National Prosecuting Authority (NPA), Innocent Muchini, why the NPA was investing time and resources prosecuting the case of a Bulawayo girl who had transmitted to a friend, the caricature of a naked Mugabe via social media platform, WhatsApp.

No doubt, given the importance and significance of the president, his office and person must be respected. But it must be understood that the president always wears at least two hats. He is not only the chief executive officer of the Republic of Zimbabwe; he is also an active politician who continuously contests for power with the opposition.

In that contest, the president/political candidate, sometimes uses derogatory terms, like “frog”, “prostitute”, “fool” and so on, in referring to his opponents. To bar those opponents from speaking similarly would result in the creation of an uneven political field, thereby inflicting a serious dent on the purity and credibility of Zimbabwe’s democracy.

To allow the president the latitude to insult fellow politicians and citizens while at the same time protecting that politician from insult, would be akin to placing two boxers in the ring; one with hands and legs tightly tied up and the other completely free to pummel the opponent.

Of course, such a “fight” would be completely ridiculous and unfair. Similarly, if the president can insult without restraint, then fellow citizens should, with respect, be free too to hit back; for we are all equal human beings and citizens in the eyes of God and in the eyes of human law. Our basic statute does recognise the concept of equality before the law.

True, the constitution also categorically states that free speech excludes an array of harmful communication, including incitement to violence, hate speech and the impairment of another person’s reputation or dignity and malicious or unwarranted breach of a person’s right to privacy. It is, therefore, important for everyone to balance their enjoyment of rights, with the obligations they have towards fellow mortals.

Still, where speech that is unacceptable or unpalatable to the subject person is uttered, the complainant has recourse in civil law. What has been wrong in our justice delivery system for a very long time, dating back to the colonial era, has been the criminalisation of speech. Criminal law is undesirable where civil remedies are available.

The offended may go to civil courts and to arbitration fora like the Voluntary Media Council of Zimbabwe (VMCZ) or the Zimbabwe Media Commission (ZMC), if the media is involved. To that extent therefore, criminal prosecutions in “insult cases” have certainly been unjustified.

Insult laws insult the constitutional stipulation of freedom of expression, and the ConCourt has in recent cases commendably condemned the essence of these statutes.

But, without the necessary legislative reform and the alignment of media laws with the constitution, the state of freedom of expression in Zimbabwe continues to be largely out of sync with international law and standards.

As the Chief Justice noted, insult cases do not belong to the ConCourt.

If insult cases are a waste of the highest court of the land’s time, then, a fortiori, the police and the NPA should not expend the nation’s precious and scarce resources on citizens — politicians and non-politicians alike — who express themselves freely about the president and about other subjects.

The world over, the criminalisation of any type of news, communication or expression is nowadays widely regarded as primitive. Indeed, the original statute that gave rise to insult laws similar to the Criminal Code under which Mwonzora was prosecuted in the infamous “goblin case”, was formulated way back in 1275 in England through a Statute of Westminster known as Scandalum Magnatum. That very old law was designed to protect “the King …, or the Great Men of the Realm”.
Surely, the protection of the “Great Men of the Realm” cannot be sustainable in this day and age — 2015!

Having condemned the criminalisation of speech and commended the Chief Justice and the ConCourt, it is probably important to conclude by making the cautionary statement that from a sociological point of view, we will build a more peaceful and progressive society if we — politicians and non-politicians, the rich and the poor, governing parties and the opposition, all of us — refrain from unnecessarily referring to each other in extremely pejorative terms.

Humour (which sometimes comes through unflattering references to each other) has its place in society’s pursuit of happiness, but gratuitous insults generally do not help in the building of a better Zimbabwe.

The unmitigated exchange of insults between citizens, that has characterised our politics; poisons the political landscape, weakens the social fabric of our society, and corrupts our communities. Politics is often referred to as a “dirty game”, partly due to the dirtiness of the language used in that field. But that can be changed.

While citizens reflect on the value of throwing insults at each other in politics, and in community-building or national development processes, it is high time Zimbabwe’s legislature supported the progressive thinking that is coming from the ConCourt by completely decriminalising communication and expression. Zimbabweans on their part would do well to tone down the rhetoric by using less venomous language towards each other in their day-to-day communication.

Words like “pfutseke!”, “bhrati shiti!”, “fokofu!”, “frog”, “prostitute”, “fool”, “puppet” and so on, insult the dignity of Zimbabwean society and compromise the true freedom for which this nation was sacrificially liberated.

Mhike is a local lawyer practicing in Harare. He writes here in his personal capacity.