By Jonathan N. Moyo
According to the Permanent Secretary in the Ministry of Justice, Legal and Parliamentary Affairs, Virginia Mabiza, as quoted in the Sunday Mail on 4 October 2020, her Ministry drafted principles of a “Patriot Bill” (which later became the “Patriotic Bill”) in August 2020; at the cynical behest of the Cabinet Committee on National Peace and Reconciliation. Mabiza highlighted the following points as the key principles of her Ministry’s draft submitted to Cabinet:
- It is the sole mandate of the State to engage other nations on issues pertaining to foreign relations.
- It is the duty of the State to engage other sovereign nations, regarding foreign relations, and not the duty of self-serving citizens.
- Private citizens will have to avoid conduct such as travelling as self-appointed ambassadors, or meeting with foreign officials, to undermine the national interest.
- Conniving with or engaging in correspondence with hostile foreign governments and nationals to inflict harm on the country will be criminalised and punished severely.
The sanctions law
On 27 October 2020, the Minister of Justice, Legal and Parliamentary affairs, Ziyambi Ziyambi, who also chairs the Cabinet Committee on Legislation, asked Cabinet to approve the principles of the “Patriot Bill” drafted by his Ministry, which he presented no longer as the initially intended Patriot Bill, but as proposed Amendments to the Criminal Law (Codification Reform Act). Apparently, the Ministry had become concerned about the negative public and international reaction to the idea of a “Patriot” Bill.
The next day, Minister of Information, Publicity and Broadcasting Services, Monica Mutsvangwa announced, as reported by the Herald on 28 October 2020, that Cabinet had considered, and approved proposals presented by Minister Ziyambi to amend the Criminal Law (Codification Reform Act) to:
“criminalise the conduct of isolated citizens or groups who, for self-gain, cooperate or connive with hostile foreign governments to inflict suffering on Zimbabwean citizens and to cause damage to the national interest. The individuals or groups involve themselves in issues of foreign relations without verifying facts or engaging domestic authorities. Such wilful misinformation of foreign governments will therefore make the individuals or groups liable for prosecution. Other actions that will become punishable include planned and timed protests deliberately designed to coincide with major international, continental or regional events or visits. There are also unsubstantiated claims of torture and abductions that are concocted to tarnish the image of the Government, and amendments will criminalise such conduct”.
Tellingly, the Herald reported the amendments to the Criminal Law (Codification Reform Act) approved by Cabinet on 27 October 2020 as, “the sanction law”; meaning that, whether called the “Patriot” Bill or the “Patriotic” Bill, the clear intent of the proposed law is twofold: (i) to sanction or criminalise support for Zidera and related sanctions on targeted individuals or organisations; and (ii) to sanction or criminalise opposition to Mnangagwa’s regime.
Based on what has been empirically observed over the last three or so yeas since the Nov 2017 military coup, it is beyond rational disputation that Mnangagwa does not brook any independent and capable opposition whatsoever that seeks to wrestle power from him.
Minister Mutsvangwa’s announcement that Cabinet had dropped what Mabiza had pitched as a “Patriot” Bill, in favour of amendments to the Criminal Law (Codification Reform Act) did not go down well with Zanu PF hardliners. Aware that the “Patriot” Bill is a Mnangagwa project that he cynically initiated through Virginia Mabiza by scandalously abusing the National Peace and Reconciliation Commission, whose remit is to bring closure to the gukurahundi atrocities through justice and national healing and not to strict people’s fundamental rights and freedoms; the Zanu PF hardliners tabled a motion in the National Assembly on 2 March 2020 in the name of the “Patriotic Bill”. Their loud message was that they wanted and were ready to mobilise for a “Patriotic Bill”, but not for amendments to the Criminal Law (Codification Reform Act).
Objectives of Patriotic Bill
When moving the motion, entitled “Promotion of the Country’s Positive Image”, Alum Mpofu, Member of Parliament for Mberengwa South who suffered a sudden death three weeks later on 28 March 2021, told the National Assembly that Mnangagwa’s proposed Patriotic Bill seeks two objectives, namely:
“a) recognises and celebrates efforts made by Zimbabwean citizens at home and abroad to promote the country’s positive image and brand; and
- b) prohibits any Zimbabwean citizen from wilfully communicating messages intended to harm the image and reputation of the country on international platforms or engaging with foreign countries with the intention of communicating messages intended to harm the country’s positive image and/or to under its integrity and reputation”.
The buttressing, rationalisation and reinforcement of these objectives was given by the Member of Parliament for Gutu South and Zanu PF Chief Whip in the National Assembly, Pupurai Togarepi, who said:
The imposition of sanctions by the United States, European Union, Canada, Australia et cetera was at the behest of our people. The imposition of sanctions by these countries was as a result of lobbying by certain individuals. Some deliberately went to these countries to ask for the people of Zimbabwe to be killed by way of denying us access to health, in other words you are saying we should die. These are citizens of Zimbabwe, what are we doing as a country to ensure that such people pay for exposing the people of Zimbabwe, we need to do something, and it should be done now.
“ …civic organisations that in their activities deviate from their core business and start advancing activities that destabilise the people of Zimbabwe … people come to this country, they tell us that they are social welfare organisations yet they have political agendas … if you have campaigned against Zimbabwe, the law should actually bar you from getting into any public office because you will have killed the people that you want to look after.
If you attack the leader of this country that has an effect when that leader goes out there to source business for this country. Nobody wants to do business with a person who from his country is called so many names. So, it is very important that the media, politicians, businesspeople and all citizens of this country understand that they are people of Zimbabwe first before their political and business interests. We are one and it is a law that we can put down today in this House on this land that will defend the interest of Zimbabwe.
It is notable that the reasons proffered by the Zanu PF’s Chief Whip to justify Mnangagwa’s proposed Patriotic Bill fly in the face of the rationalisations invoked by the regime to justify the military ouster Robert Mugabe and his government in November 2017.
Criticism of the Patriotic Bill
Mnangagwa’s proposed Patriotic Bill has met with ferocious resistance, nationally from civil society activists, academics and the political opposition, and internationally from intergovernmental bodies and multilateral human rights NGOs.
In the main, the following seven notable criticisms have been raised:
- In drafting the principles of the Patriotic Bill approved by Cabinet, the Ministry of Justice, Legal and Parliamentary Affairs has sought to justify the need for the Bill by claiming that it is based on the precedent of the Logan Act enacted 222 years ago in the United States on 30 January 1799. It is shocking that a whole Ministry of justice did not bother to review the history of the application or use of this law in the US. If the Ministry had done the required due diligence, it would have found that only two people have been indicated but not prosecuted under the Logan Act; in 1802 and in 1852, and that there has been no indictment under the law for some 169 years. Relying on such a precedence, and making noise about it, is a national embarrassment.
- A key legacy of Zimbabwe’s liberation movement is the virtue of solidarity in the struggle, under which progressive individuals, organisations and countries; across the political and ideological divides, networked through solidarity to fight evils like UDI in Rhodesia and Apartheid in South Africa. It beggars belief, and is frankly reactionary in the extreme, that a government of a former liberation movement, like Zanu PF styles itself, seeks to enact a so-called Patriotic law to criminalise not only fundamental human rights that are at the core of the gains of the liberation struggle, but also to criminalise the very spirit and practice of solidarity, without which Zimbabwe would not be an independent country today.
- One of the recent gains of human rights, at the international level, is the obligation on members of the United Nations, continental bodies such as the African Union and regional blocks such as Sadc to discharge the “responsibility to protect” citizens in a member states whose governments go rogue and become a clear and present danger to the people. Mnangagwa’s proposed Patriotic Bill is an audacious attack on the now well-established international principle of the responsibility to protect.
- It is ironic that while Mnangagwa’s regime claims to be a “human-rights-friendly” “new dispensation” and a “Second Republic”; which is pro-reform and has widened and deepened the freedoms of Zimbabweans since the military coup in November 2017; his proposed Patriotic Bill seeks to criminalise fundamental rights, such as freedom of expression, freedom of assembly, freedom of association and freedom to protest or to demonstrate and the right to the privacy of personal correspondence.
- Mnangagwa’s proposed Patriotic Bill is inconsistent with Zimbabwe’s founding values and principles that are enshrined in section 3 of the new Constitution adopted in 2013; especially but not only regarding the “recognition of the inherent dignity and worth of each human being”. The proposed Patriotic Bill places an artificial State, monopolised by a ruling clique, above human beings.
- The proposed Patriotic Bill is based on a flawed concept of sovereignty that conflates the “State” with “state capture”; and confuses the interests of a self-indulgent power elite, that has captured the state, with the interests of the state. Under the new Constitution, sovereignty belongs to the people, not to the State. It is for this reason that section 88 of the Constitution provides that “executive authority derives from the people of Zimbabwe”; section 117 that “the legislative authority of Zimbabwe is derived from the people”; and section 162 that “judicial authority derives from the people of Zimbabwe”. Mnangagwa’s proposed Patriotic Bill is a systematic and unprecedented total assault on the constitutionally enshrined sovereignty of the people of Zimbabwe.
- Finally, at the most basic level, Mnangagwa’s proposed Patriotic Bill rests on an outdated state-based conceptualisation that gives “patriotism” not only a bad name, but that also gives it a corrupt reputation with the result of bringing to real life the famous line by the British essayist Samuel Johnson, renowned for his essay, The Patriot, that “Patriotism is the last refuge of the scoundrel”.
Way forward for the Patriotic Bill
The form in which Mnangagwa’s proposed Patriotic Bill will get to Parliament remains to be seen. What is clear is that Cabinet approved the Bill’s principles last October and that since then, several iterations of the Bill have been drafted by the Attorney General’s office. Otherwise, there are three possibilities of what to expect, subject to what Cabinet will finally approve as the Bill to be gazetted and presented to Parliament.
One possibility is a Patriot Bill pushed by Virginia Mabiza and adopted on 4 August 2020 under the treacherous auspices of the Cabinet Committee on National Peace and Reconciliation; another possibility are the amendments to the Criminal Law (Codification Reform Act), presented to Cabinet by Minister Ziyambi Ziyambi on 27 October 2020; and yet another possibility is the Patriotic Bill championed by the Zanu PF parliamentary caucus, as demonstrated by the party’s yet to be closed Motion introduced by the late Alum Mpofu and Pupurai Togarepi on 2 March 2021 in the National Assembly.
As things currently stand, Mnangagwa’s Patriotic Bill is destined for Parliament, in one form or another. The Zanu PF political base has been mobilised for it; and the party’s rabble rousers are raring to go. Zanu PF sees the Patriotic Bill as a necessary means for protecting itself against all forms of political opposition in the run up to the 2023 general election. It is therefore imperative for everyone else to rise up to the challenge and resist the Bill, by all available constitutional means, to protect the people’s human rights and freedoms, as the gains of Zimbabwe’s liberation struggle that are now enshrined in the country’s new Constitution adopted in 2013.