As stated before, not only is the Logan Act archaic, outdated and inapplicable to the Zimbabwean setting; most significantly, American scholarly sentiment towards the Logan Act has characterised it as an “embarrassment”, an “eighteenth-century relic”, “a hoary and impossible law which has expired by default”, having fallen into disuse.
With this historical context, one critical inquiry in relation to the Logan Act is why it has not been used in any respect in its country of origin and why it continues to exist.
Most of the presidents who have led the United States have not shown a determined willingness to prosecute Logan Act violations.
There has not been a scarcity of requests for prosecutions under the Act.
Under different administrations, claims have been made through the state and federal departments and from the general American public that certain individuals (sometimes high-ranking and well known) over time have violated the Logan Act.
The list of alleged violators includes Jesse Jackson, Jim Wright, Nancy Pelosi and former Secretary of State John Kerry whom President Donald Trump called upon to be prosecuted for violating the provisions of the Act in 2019.
Interestingly, members of the administration of Trump and himself have also been accused of violating the Logan Act.
The claims to this point have not yielded any prosecutions or convictions.
Of the many reasons advanced to clarify the survival of the Logan Act through generations and its puzzling non-enforcement, a few are striking.
Self-interest, fear of persecuting political allies and friends and fear of curtailing unofficial diplomatic engagements top the list.
Previous American presidents might have avoided to prosecute violations of the Logan Act, based on the realisation that they themselves or their close allies and friends could possibly end up guilty of breaching the same provisions for actions taken before and/or after their tenure as sitting presidents.
Another reason has been that to enforce the Logan Act in court would result in the Act failing to withstand constitutional rights breaches.
So why has America kept the law and not repealed it?
Many Americans, who have taken time to analyse the text, background history and trends for the use of the Logan Act agree that it is a political tool simply enacted to frighten political adversaries and threaten free speech.
Consequently, for the present moment the Logan Act remains dormant, good enough to scare opponents with but not good enough to use.
This understanding makes it apparent why the current government of Zimbabwe would seek to emulate the folly surrounding the Logan Act.
The current government has declared itself a new dispensation divorced from the regime of Robert Mugabe, and one that is open to business and that respects human rights.
Yet, it seeks to enact a law that has the potential to pull down the very core of its mantra.
This is because the real reason is to add the Patriot Act into the government’s bag of tools to threaten and silence the media, political opponents and civil society so as to hide the great divide that now exists between government’s rhetoric and the realities of its practice.
In an article written by Nobleman Runyanga, cited only as a correspondent in the Harare Post a year ago, the author makes the case for a Logan Act in Zimbabwe, erroneously stating that the United States of America (USA) has a Patriot Act named the Logan Act.
However, that is not the correct position.
Firstly, the two USA statutes are different.
The USA does have its own Patriot Act, a statute that was enacted in October 2001 as a response to the terrorist attacks on the country in September of the same year. Its complete name is “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” Act of 2001.
As is clear from the name, that the aim of this Act is to discourage and punish terrorist acts within the USA and elsewhere, and to boost USA law enforcement investigatory tools against organised crime, drug trafficking and terror crimes.
Secondly, the aim, scope and time relevance of the USA Patriot Act is clearly separated from that of its Logan Act. Each statute was enacted to respond to a distinct context and circumstance, none of which exist and are necessary for Zimbabwe.
It is fallacy to claim that the intended Patriot Act for Zimbabwe be modelled after the Logan Act to serve the purpose of protecting Zimbabwe’s national interests and foreign affairs, without a proper and full understanding of the statutes, their history and context.
What is clear though is that Zimbabwe is characterised by an extended list of repressive laws that have unjustifiably sought to limit freedom of expression.
Already, since 2018, the country has witnessed determined efforts by the government to systematically remove freedom of expression as guaranteed under the Constitution of Zimbabwe (2013) through repressive laws and malicious prosecutions.
Section 31 of the Criminal Law (Codification and Reform) Act which provides for the prosecution of a person who publishes or communicates a statement that is wholly or materially false has become a frequent feature criminal charge in the courts.
The opportunity for repression of free speech rights has also been taken under the guise of managing the Covid-19 pandemic.
Section 14 of Statutory Instrument 83 of 2020 enacted in response to the pandemic, provides for prosecution of any person who publishes or communicates false news about any public officer involved with enforcing or implementing the national lockdown under section 31 of the Criminal Code.
A convicted offender is liable to pay to a fine of up to or exceeding level 14 or imprisonment for a period not exceeding 20 years or both.
No young democracy worth its name can aspire to such a law, unless it is in fact a fake democracy.
Musa Kika is a constitutional and human rights lawyer and is the executive director of the Zimbabwe Human Rights NGO Forum.
Jacqueline Rukanda is a human rights lawyer and serves as a strategic impact litigation specialist at the Zimbabwe Human Rights NGO Forum.