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Writes Kumbirai Mafunda
Zimbabwe Lawyers for Human Rights (ZLHR) is greatly saddened by the passing of the Criminal Law (Codification and Reform) Amendment Bill H.B. 15, 2022 (introducing so-called patriotism provisions) in the House of Assembly on 31 May 2023.
It now awaits to be presented and debated by the Senate.
The Bill was gazetted on 23 December 2022 to criminalise citizens and residents of Zimbabwe who, by recourse to foreign countries, seek to implement measures that undermine Zimbabwe’s sovereignty, dignity, and independence as a nation.
The Bill lists offences such as “wilfully injuring the sovereignty and national interest of Zimbabwe” for active participation by Zimbabweans in meetings inside and outside Zimbabwe on issues of military intervention, subverting/ upsetting/ overthrowing or overturning the constitutional government, or on economic sanctions and trade boycotts.
Following a critical analysis of these provisions, ZLHR concluded that the provisions are vague, lack certainty, are imprecise, and are thus prone to abuse by law enforcement. The Bill does not define “sovereignty” and “national interest”, which could be interpreted broadly and subjectively to criminalise the legitimate conduct of those asserting their freedom of expression.
ZLHR is gravely concerned that the Bill penalises citizens and residents for merely attending a meeting where sanctions are considered, whether the sanctions target any individual or official or class of individuals. The vague criminalisation of meetings between Zimbabwean citizens and foreign governments violates human rights to freedom of assembly, association, and expression guaranteed in the Constitution. Zimbabwe has also voluntarily agreed to be bound by numerous United Nations and African Union human rights instruments providing these rights.
Once enacted into law, these patriotism provisions will have extraterritorial application and criminalise participation by
Zimbabweans in meetings held in other countries. This will have a chilling effect of silencing Zimbabwean civil society organisations’ international advocacy efforts to promote human rights protection in Zimbabwe.
The right to participation of civil society organisations at regional and international meetings is guaranteed under international law.
Of grave concern in the Bill are the excessive penalties for wilfully injuring the sovereignty and national interest of Zimbabwe, which include the death penalty, lengthy imprisonment, revocation of citizenship, prohibition from being registered as a voter or voting at an election for a period of at least five years.
ZLHR notes that some of the penalties are manifestly unconstitutional. The death penalty can only be imposed on a person convicted of murder in aggravating circumstances, as provided for in section 48 of the Constitution of Zimbabwe. The penalty for the prohibition of registration as a voter or voting at an election violates political rights as provided for in section 67 of the Constitution as read in paragraph 2 of the Fourth Schedule to the Constitution, which provides for disqualification for registration as a voter only if a person has been convicted under the Electoral Act. Revocation of citizenship can only be done in terms of section 39 of the Constitution of Zimbabwe, and conviction for so-called unpatriotic conduct is not a ground for revocation in terms of section 39 of the Constitution.
The proposed provisions will result in the closure of the civic space and violate human rights at a time when Zimbabwe has committed to implement critical reforms under the Structured Dialogue on Arrears Clearance and Debt Resolution process.
ZLHR urgently calls upon the government to:
• Immediately withdraw the Criminal Law (Codification and Reform) Amendment Bill H.B. 15, 2022 from Parliament and stop pending Senate processes.
• Uphold the rule of law and protect human rights by ceasing all actions that undermine constitutional rights.
• Take heed of Resolution 62(XXXII) 02 of the African Commission on Human and Peoples’ Rights on the Adoption of the Declaration of Principles of Freedom of Expression in Africa, which compels states not to interfere with the freedom of expression arbitrarily.
• Act in good faith and carefully consider the guidelines on the rights to freedom of peaceful assembly and association of the African Commission on Human and Peoples’ Rights, whose fundamental principle enjoins states to enact laws which facilitate rather than hamper the exercise of rights to freedom of association and assembly.
• Create an enabling environment for citizens and residents to exercise their constitutionally guaranteed rights without fear of
reprisals or criminalisation.
• Respect the Constitution and international human rights obligations.