Source: Gloves off as Wadyajena challenges ‘insult’ law | The Herald April 26, 2016
Daniel Nemukuyu Senior Court Reporter
ZANU-PF legislator for Gokwe-Nembudziya Justice Mayor Wadyajena is now seeking the striking down of Section 41(b) of the Criminal Law (Codification and Reform) Act, which criminalises the use of words perceived to be threatening, abusive or insulting, saying it was unconstitutional.
Section 41(b) of the Criminal Code reads:
“Any person who, in a public place, uses threatening, abusive or insulting words or behaves in a threatening, abusive or insulting manner, intending to provoke a breach of the peace or realising that there is a real risk or possibility that a breach of the peace may be provoked; shall be guilty of disorderly conduct in a public place and liable to a fine not exceeding level five or imprisonment.”
Cde Wadyajena raised the challenge in a case in which he is being charged for violating the contested section of the law by allegedly insulting and threatening a party member and Kadoma businessman Cde Jimayi Muduvuri in Victoria Falls at the ruling party’s annual conference last year.
Cde Muduvuri, a Kadoma-based businessman, reported Cde Wadyajena to the police leading to his arrest for allegedly insulting and threatening him.
The legislator now wants his prosecution to be permanently stayed citing violation of several sections of the supreme law in the manner in which the case was being handled.
He was charged with two counts of violating Section 41(b) of the Criminal Law (Codification and Reform) Act.
Cde Wadyajena applied for his case to be referred to the Constitutional Court citing violation of his fundamental rights, but magistrate Ms Lindiwe Maphosa threw the application out.
On Friday, Cde Wadyajena’s lawyers filed a constitutional application directly to the Constitutional Court seeking permanent stay of prosecution and a declaration that the refusal by the judicial officer to refer the matter to the specialised court was a violation of the politician’s rights.
Magistrate Ms Maphosa, Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa, Prosecutor-General Mr Johannes Tomana and Attorney-General Advocate Prince Machaya were listed as respondents in the application.
Cde Wadyajena, in his application, argued that Section 41(b) had the same wording as Section 95(1) of the Criminal Code, which has since been declared unconstitutional by the Constitutional Court in a different case.
To that end, the politician wants the section in question to be declared unconstitutional as well.
The unconstitutional Section 95(1) reads:
“Any person who, by words or conduct, seriously impairs the dignity of another person shall be guilty of criminal insult if he or she intended his or her words or conduct to have an effect referred to in paragraph (a) or (b) or if he or she realised that there was a real risk or possibility that his or her words or conduct might have such an effect, and shall be liable for a fine not exceeding level six or imprisonment for a period not exceeding one year or both.”
The Constitutional Court in the case of Section 95(1) ruled that criminalising an insult was a violation of freedom of expression and freedom of the media.
Cde Wadyajena argued that his right to equal protection of the law was infringed upon when the magistrate denied him access to the Constitutional Court through a referral route.
“I contend that the dismissal of my request for referral in terms of Section 175(4) of the Constitution infringed my right to equal protection and benefit of the law,” he said.
Cde Wadyajena argued that the magistrate erred in dismissing the application for a reason other than the application being frivolous and vexatious.
“The first respondent erred when she used improper considerations in dismissing my application in that the only basis for dismissing my application should have been informed by whether such was merely frivolous or vexatious. She never addressed these aspects in her ruling,” read the application.
He argued that in terms of Section 175(4) of the Constitution, under which the application was brought before the magistrate, referral of the application to the Constitutional Court was peremptory.
“First respondent had no option at law but to refer the matter to this honourable court. Her dismissal is a legal nullity as she became functus officio once she found the matter to raise constitutional issues.
“As such the matter had to be referred,” argued Cde Wadyajena.
Cde Wadyajena argued that it was not the magistrate’s responsibility to adjudicate over whether Section 4(b) of the Criminal Code was a justiciable limitation of the declaration of rights.
He argued that his right to hold opinions and right to freedom of expression were violated by his arrest and prosecution in terms of Section 41(b) of the Criminal Code.
Government is yet to respond to the constitutional application.