Alex T. Magaisa
A question has arisen over the legal effect of a court declaring that a legislative provision is void under the constitution. To be more specific, the question may be stated as follows:
What is the status under the new constitution of a legislative provision that was declared void under the former constitution?
The answer to this question should be simple. However, a lot of dust now swirls around it as the Zimbabwean government and its supporters seek to justify the arrest and detention of Hopewell Chin’ono, Fadzayi Mahere, and Job Sikhala under section 31(a)(iii) of the Criminal Code, which was designed to criminalize the publication of falsehoods.
The three are prominent critics of the government: Chin’ono is a journalist while Sikhala and Mahere are top officials of the main opposition party, the MDC Alliance. This had led observers to argue that they are being politically persecuted. This critique focuses on the illegality of a provision being used by the government.
Why the offence does not exist at law
The provision in question (section 31(a)(iii) of the Criminal Code) was designed to criminalize the publication of falsehoods. However, in the case of Chimakure & others v Attorney General (2014) the Constitutional Court declared that the provision was void because it violated the right to freedom of expression under the constitution which operated between 1980 and 2013. For convenience, this former constitution will be referred to as the Lancaster House Constitution on account of its origins.
It is also important to note that the Minister of Justice, Legal and Parliamentary Affairs who had been invited by the court to make submissions justifying the constitutionality of the provision, withdrew his objections during the proceedings. This was, in effect, a concession on the part of the government that the provision was unconstitutional and void. Therefore, there was no doubt based on that judgment, that the offence of publishing falsehoods was no longer part of the Criminal Code. It had been struck off the statute books.
If anyone had any doubts about the effect of a declaration of the voidness of a legislative provision, it was cleared by the Constitutional Court in another case decided in 2016. In the case of MISA (Zimbabwe) & others v Minister of Justice, Legal and Parliamentary Affairs & others (2016), by a unanimous decision, the Constitutional Court held that a provision of the Criminal Code which had previously been declared unconstitutional under the Lancaster House Constitution was void and therefore not part of the law even under the new constitution.
What had happened in that case was that the Constitutional Court had ruled in the case of Madanhire & another v The Attorney General (2015) that section 96 of the Criminal Code which provided for the offence of criminal defamation was void. However, Justice Patel, who wrote the judgment in that case had left a question hanging as to whether the provision might still be constitutional under the new Constitution.
Justice Patel had rightly been criticized for taking this contradictory position because once he had declared the provision void under the Lancaster House Constitution, that should have been the end of the inquiry. A constitutional provision cannot be half dead. It could not be void under the old constitution and still have a chance of life under the new constitution without being re-enacted by Parliament. His judgment had caused unnecessary uncertainty and confusion.
In any event, the matter was correctly settled by the Constitutional Court in the MISA case. MISA and others approached the Constitutional Court to clear these doubts over the status of the criminal defamation provision under the new constitution. They argued that having already been declared void under the Lancaster House Constitution in the Madanhire case, the criminal defamation provision was no longer part of the law when the new constitution came into force. Provisions of the new constitution clearly stated that the “existing law” was “an existing enactment or any other law, whatever its nature, that was in force in Zimbabwe immediately before the effective date”. Since the criminal defamation provision had been declared void under the Lancaster House Constitution, it was not part of the existing law.
An important point made by MISA to which the government’s lawyers conceded was that the voidness of the criminal defamation provision did not begin from the date that the Constitutional Court made the declaration of voidness in the Madanhire case, but went back to the beginning when the Criminal Code was enacted in 2004. In other words, the declaration of voidness meant the offence of criminal defamation never existed under the enactment.
With the government conceding to this point, the Constitutional Court confirmed that the provision was not part of the existing law when the new constitution came into force. It stated, “Accordingly, for the avoidance of doubt, section 96 of the Criminal Law (Codification and Reform) Act is void and not part of the said enactment”. The court essentially confirmed that once a provision has been declared void, it is not part of the law from the beginning.
Why Precedent Matters
The doctrine of precedent is an important part of Zimbabwean law. It means the decision of a superior court is an authority for subsequent cases that involve similar legal issues. It is fair and just for the courts to apply the law in the same way to similar cases. In the MISA case, the Constitutional Court set the precedent regarding the status of legislative provisions that have been declared void under the Lancaster House Constitution. Such provisions are not part of the law. It’s as simple as that.
The current matters concerning the status of section 31(a)(iii) of the Criminal Code are similar to the case involving section 96 of the Criminal Code. If the Constitutional Court found that section 96 was not part of the law because it had been declared void in an earlier case, it follows that section 31(a)(iii) is also not part of the law having been declared void in an earlier case.
This means to the extent that Hopewell Chin’ono, Fadzayi Mahere, and Job Sikhala were arrested on allegations of breaching section 31(a)(iii), this was unlawful because the offence does not exist at law.
A provision that was declared void under the Lancaster House Constitution cannot now be regarded as valid under the new Constitution. To do so would be to give police and prosecution authorities the power to enact legislation, which they do not have under the law. The only way the provision could be valid was if the legislature had passed a new law replacing it after the Chimakure case.
The government’s argument that the provision is valid because it has not been declared unconstitutional under the new constitution is, therefore, with respect, misguided and baseless. Arrests based on section 31(a)(iii) of the Criminal Code are unlawful because the offence does not exist at law. These are arbitrary arrests. Section 49 of the Constitution makes it clear that no person should be deprived of their liberty arbitrarily or without just cause. One cannot be reasonably suspected of having committed an offence when the alleged offence that does not exist at law. This is an abuse of the law. There is no basis for placing that person on remand and a court that places such a person on remand is abdicating its constitutional obligations.
Consider Habeas Corpus
It has become clear in recent months that there is a lot of gamesmanship taking place at the Magistrates Court. Legal processes are being unnecessarily delayed and prolonged to keep accused persons in jail, exposing them to hazards of the COVID19 pandemic. Oft-times, when matters come to the High Court on appeal, judges find that the magistrates had misdirected themselves in the application of the law. One might ascribe it to incompetence, but the more critical see deliberate action to frustrate politically vulnerable accused persons.
Given this, defence lawyers should consider making greater use of section 50(7) of the Constitution which provides for the right of habeas corpus. Used and applied in the spirit for which it was crafted, this is a powerful remedial measure. It provides that “If there are reasonable grounds to believe that a person is being detained illegally …. any person may approach the High Court for an order – (a) of habeas corpus, that is to say, an order requiring the detained person to be released … or (b) declaring the detention to be illegal and ordering the detained person’s prompt release”
Under this provision, the High Court has a wide discretion: it has the power to make “whatever order is appropriate in the circumstances”. Significantly, it provides a direct route to the High Court. So far, lawyers have followed the traditional pathways, challenging placement on remand and applying for bail at the Magistrates Court, which is always denied before an appeal to the High Court. It is long and predictable. It is important to consider other avenues, such as a direct approach to the High Court under section 50(7), especially where the arrest and detention are illegal.
There are good grounds to demonstrate illegality where the detention is based on an alleged offence that does not exist at law. This is illegal detention envisaged under section 50(7) of the constitution. Habeas Corpus as provided for under section 50(7) has been used in cases where the accused’s whereabouts are unknown. But as argued here, the remedy is far wider than that. It can be used where the whereabouts of the accused are known and there are reasonable grounds to believe that the detention is illegal. It is important to test the efficacy of this constitutional facility.
A regime that relies on arbitrary power cannot make a legitimate claim to be applying the rule of law. A person must know in advance that what they are doing is illegal. If the law prohibiting that conduct does not exist, as is the case with section 31(a)(iii) of the Criminal Code, they are not committing any offence. To charge them under a non-existent provision exposes every individual to “offences” whose substance and character they do not know. It’s diabolical. It is these arrests and detentions which cause those around the world not to take the country seriously. The regime’s penchant for shooting itself in the foot has reached legendary status. While it blames others, it is busy imposing sanctions upon itself. Unfortunately, the regime drags every citizen into the abyss.