Does Zim Have Jurisdiction Over ‘Baba Jukwa’?

This article analyses the arrest of Sunday Mail editor Edmund Kudzayi for allegedly “attempting to subvert a constitutionally elected government or alternatively attempting to commit an act of insurgency, banditry, sabotage or terrorism” with the view to assess the jurisdiction of the High Court to prosecute him and 10 other individuals accused of being behind Facebook character Baba Jukwa. It will also assess Zimbabwe’s overall eligibility and capacity to prosecute social media crimes. The article will also offer recommendations for Zimbabwe in light of the fact that social media crimes are now a reality globally.

Jurisdiction of the High Court

Section 171 (1) (a) of the Constitution of Zimbabwe grants the High Court jurisdiction over all civil and criminal matters throughout Zimbabwe. Section 23 of the High Court Act (Chapter 7:06) further provides that “subject to this Act and any other law, the High Court shall have full original criminal jurisdiction over all persons and over all matters in Zimbabwe.”

Therefore the High Court has jurisdiction in matters throughout Zimbabwe and over persons and all matters in Zimbabwe. For the High Court to have jurisdiction over Kudzayi who is accused of committing cybercrimes via posts on Facebook, his alleged crimes should be matters in relation to the prosecution of a person in Zimbabwe and a matter that is in Zimbabwe.

In view of the above, can cyber-crimes be ascribed to a particular or specific geographical location for the purposes of jurisdiction? Do Zimbabwean Courts have jurisdiction over social media crimes similar to those alleged in the Baba Jukwa case? This paper will answer the above questions.

Territoriality of Crimes

The Constitution read together with the Criminal Procedure and Evidence Act (Chapter 9:07), the Criminal Law, Codification and Reform Act (Chapter 9:23 herein called Code) of Zimbabwe provides for the criminal laws of Zimbabwe.

While the Constitution provides for the prosecution of crimes “throughout Zimbabwe” and the High Court Act provides for the prosecution of crimes “in Zimbabwe”, the code regulates the territoriality of crimes. Section 5 of the Code states that Zimbabwe can try, convict and punish any person who commits a crime, “partly outside Zimbabwe if the conduct that completed the crime happened in Zimbabwe.