They are now pinning their hopes on a case that is before the Supreme Court, sitting as a Constitutional Court on Thursday.MP for Nyanga North Hon. Douglas Mwonzora, who is being charged under the insult law for allegedly likening President Mugabe to a goblin, is challenging the constitutionality of the law.The Supreme Court Registrar has written to Hon. Mwonzora’s lawyers and the Attorney General’s Office advising that the case has been set down for this Thursday.In his application set to be heard on Thursday, Hon. Mwonzora argues that the insult law is unconstitutional as it infringes on freedom of expression while giving undue protection to an elected President who should be subjected to public scrutiny.
In the case leading to the Supreme Court challenge, Hon. Mwonzora is accused of likening President Mugabe to a goblin at a rally he addressed at Ruwangwe Growth Point in Nyanga North constituency in March 2009.The State alleges that Hon. Mwonzora uttered the following words: “President Robert Mugabe chikwambo uye achamhanya. Ndaona Mugabe achigeza, tauro muchiuno, sipo muhapwa uye ndebvu hwapepe. Pamberi neMDC, pasi nechihurumende chembavha chinosunga vanhu vasina mhosva chichitora zvinhu zvavo.
”Police took this to mean: “President Mugabe is a goblin and will run… I saw Mugabe bathing, towel on his waist, soap under his armpits and big beard… forward with MDC, down with bad government of thieves which arrest innocent people and taking away their property (sic).”Hon. Mwonzora argues that the law used to charge him gives President Mugabe an unfair advantage as a political opponent.Reads his Supreme Court application:
“Applicant (Hon. Mwonzora) contends that his political rights as read together with his freedoms of association and assembly are being violated by subjecting him to criminal prosecution over alleged political utterances made in relation to a political opponent. In the present matter, Section 33 of the Criminal Law (Codification and Reform) Act is being used to gag Applicant in the exercise of his political rights and freedoms of association and assembly.
Applicant, being a member of the MDC, in advancing his political interests, is entitled to utter political statements which best serves his cause. The President is entitled to an equal. “Applicant contends that in enacting Section 33 of the Criminal Law (Codification and Reform) Act, the legislature never intended to suppress such freedoms, which are in any event non-derogable and Section 33 of the Criminal Law (Codification and Reform) Act is not enacted for any of the purposes that would place a limitation on Applicant’s rights aforementioned.
It is designed to protect a President, in the exercise of his functions as such. It does not extend to protection of a political functionary of certain political party. Allowing the protection extended to Section 33 of the Criminal Law (Codification and Reform) Act to extend to political functionaries in their capacity as such tilts the playing field in favour of one political party.
No citizen will ever be safe in criticising Zanu PF and what it stands for if such criticisms cannot be extended to the epitome of that political party simply because he is a president.“It is particularly inappropriate to invoke Section 33 of the Criminal Law (Codification and Reform) Act to govern political issues because then no one would be able to stand for the office of President for so long as there is a sitting President, because any criticism of that President will be construed as seeking to undermine his authority or insult him.
“It is also difficult for any citizen, and in this case Applicant, to hold any thought or opinion about the President (freedom of conscience) and express that thought (freedom of expression) about or concerning the President as any such thoughts and expressions may be deemed to be insulting or undermining the authority of the President.“It is submitted that the import of Section 33 of the Criminal Law (Codification and Reform) Act is too broad, wide and vague so as to make the law uncertain.
It imposes an undue limitation on Applicant’s protection of the law as it is not possible for Applicant to regulate his political conduct in so far as it relates to the First Secretary of Zanu PF for so long as he also wears the jacket of the President of Zimbabwe. This law must therefore be struck down as being unconstitutional. “It is submitted that Section 33 of the Criminal Law (Codification and Reform) Act is not reasonably necessary in any democratic society. This is because of the undue limitations it places on a cross section of related rights and freedoms enshrined in the Constitution of Zimbabwe and also guaranteed in other international human rights instruments.”
The Supreme Court is on Thursday expected to determine the following:
• Whether or not Hon.Mwonzora’s freedom of expression, as guaranteed by Section 20 (1) of the Constitution has been violated
• Whether or not Hon.Mwonzora’s freedom of thought as guaranteed by Section 19 of the Constitution has been violated
• Whether or not Hon.Mwonzora’s political rights enshrined in the Declaration of Rights has been violated
• Whether or not Section 33 of the Criminal Law (Codification and Reform) Act is too wide, broad and vague so as to render the law uncertain and thereby infringing on Hon.Mwonzora’s protection of the law as set out in Section 18 of the Constitution and whether or not the Section should be struck down for want of constitutionality.
Post published in: News