What if there is a pandemicinduced constitutional crisis?
WWeaponisation of the law
hen Hopewell Chin’ono and Jacob Ngarivhume were first arrested and detained in July 2020, the BSR posited that the two men were being placed at high risk of contracting the coronavirus by the Mnangagwa regime. The two were eventually released without contracting the deadly infection. Chin’ono was arrested again in November 2020. The year began with yet another arrest, the third in six months — all of them unjust.
This time, he was arrested together with Job Sikhala and Fadzayi Mahere, both senior officers of the leading opposition party, the MDC Alliance. This is also Sikhala’s second arrest in six months, having been arrested in August 2020, for the same offence that Chin’ono was facing. The current detention is based on the charges that the three published falsehoods in violation of a provision of the Criminal Law Code. However, as has been argued in a recent BSR, the offences under which they are being charged, section 31(a)(iii) of the Criminal Code, does not exist. It was declared void by the Constitutional Court six years ago because it violated the right to freedom of expression.
The Constitutional Court has previously addressed the issue of criminalising the publication of falsehoods. The current Chief Justice Luke Malaba was very clear on the scope of the right to free speech and that the government has no role in monitoring truth or criminalising lies. In the case of Chimakure and others v Attorney General (2013), Deputy Chief Justice Malaba (as he then was) wrote in his judgment:
“The fact that a person has told lies to others on any subject matter should not be of concern to the State.
“Government is prohibited from appointing itself as a monitor of truth for people. They are able to do that for themselves through the free exchange of ideas and information on matters of public interest. People must not be denied the right to freely use speech or the press to silence each other and decide what views shall be voiced. What is protected is really the indivisible freedom of everyone to speak even when they may after they have done so be called liars.”
The law treats those who tell the truth and those who tell lies equally. He wrote, “The principle of equality of treatment behind the right [of freedom of expression] assures those who tell lies and those who tell the truth that the guarantee of the right to freedom of expression belongs to them together.” The declaration of the voidness of the provision by the Constitutional Court meant the provision never existed in the first place. In the case of Chin’ono in particular, it is astounding that the Magistrates’ Court remanded him in custody when the only offence under which he is charged does not exist. The detention is unlawful, and he should never have been remanded in custody.
The cases also illustrate the blatant selective application of the law. The allegedly false information which they are accused of having published on social media platforms was also circulated by hundreds, if not thousands of people on Twitter and other social media platforms. Even some persons who are associated with Zanu PF published the same material. Every person who published it did so because they believed it to be true and the circumstances suggested that it was true. Even up to now, no cogent proof has been presented that it was false.
The selective application of the law against a journalist who has been critical of the Mnangagwa regime and two senior opposition figures to the exclusion of all others who published the same information demonstrates the targeted nature of the persecution. The regime is weaponiszing the law against political opponents and critics. It justifies its actions on grounds of legality, claiming to be enforcing the law.
Equal protection and benefit of the law
Selective application of the law also violates the trio’s right to equal protection and benefit of the law. Section 56(1) of the Constitution provides that “All persons are equal before the law and have the right to equal protection and benefit of the law.” This consistent with Article 26 of the International Covenant on Civil and Political Rights which provides that,
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”
Furthermore, Article 3(2) of the African Charter on Human and Peoples’ Rights provides that, “The right to equal protection and benefit of the law means that every person must be treated equally under the law”
These provisions prohibit unfair discrimination of persons, who must all be treated equally under the law. If one is treated differently from others, he or she is being deprived of equal protection and benefit of the law. It is arguable that when someone is arrested and detained where several other persons who did the same thing are not given the same treatment, the person is being unfairly discriminated against and deprived of the right to equal protection and benefit of the law. The same law cannot apply to a few people, leaving others who did the same thing. It would mean that the rest are receiving the protection and benefit of the law, while a few are not and that is also unfair discrimination. Selective application of the law is therefore a violation of both the right to equal protection and benefit of the law and the freedom from unfair discrimination. The inescapable conclusion is that the arrests, detention, and remand of Mahere, Chin’ono, and Sikhala are unconstitutional and illegal.
Unfortunately, weak state institutions, including the police, prosecution, and the magistrates’ court are all enablers of this weaponisation and selective application of the law. The three should never have been arrested, let alone detained. They should never have been placed on remand by the magistrates’ court. Chin’ono and Sikhala should never have been denied bail. The reservation of judgment in the bail appeal of Chin’ono is equally unreasonable because it simply means more time for him in jail for an unlawful arrest and detention. Only Fadzayi Mahere was granted bail but not before she had spent a week in the squalid conditions of Chikurubi and upon release, she tested positive for coronavirus.
Weaponising the virus
Weaponisation of the law against political opponents assumes a more sinister dimension during the time of a deadly pandemic. On a normal day, a Zimbabwean prison cell is a terrible place. Prison conditions have been condemned by senior judges following inspection visits. They have been described as cruel, inhumane, and unsuitable for human habitation. They are overcrowded. There is no running water. Lavatories do not work. These deplorable conditions make inmates highly vulnerable to infection and disease. They are a haven for highly infectious diseases like Covid-19. There is no social distancing. The inmates have no protective clothing including things as basic as masks. The regime has made no serious efforts to mitigate the spread of the pandemic in prisons.
It is in these conditions that Mahere, Chin’ono, and Sikhala were placed by the Mnangagwa regime. It is not surprising that Mahere tested positive for Covid-19 when she was released on bail after a week as an inmate. Sikhala and Chin’ono are still inside and each day they spend in those conditions they are more vulnerable to infection. The regime knows this and wills it to happen.
The courts could mitigate the risk by dealing with their cases expeditiously. But the wheels of justice turn ever so slowly in Zimbabwe, and it is deliberate. On Thursday, a High Court judge who heard Chin’ono’s bail appeal reserved judgment indefinitely. He simply kicked the ball forward, into the unknown, and by so doing, he prolonged the injustice and Chin’ono’s misery. These delays by the judiciary run contract the principles by which judicial officers must perform their duties under the Constitution. Section 165(1) of the Constitution says,
“In exercising judicial authority, members of the judiciary must be guided by the following principles-- … (b) justice must not be delayed, and to that end members of the judiciary must perform their judicial duties efficiently and with reasonable promptness; c. the role of the courts is paramount in safeguarding human rights and freedoms and the rule of law”.
By delaying decisions, and reserving judgments in bail cases indefinitely, judicial officers are simply prolonging the violation of fundamental rights and freedoms. How bail cases are handled makes a mockery of the fact that the new Constitution specifically provides that bail is a constitutional right. Instead of the state being required to give compelling reasons why bail must be denied, courts are still treating accused persons as if they must prove why they must be given bail. The courts must promote rights and freedoms, not to stifle and frustrate them by creating artificial hurdles and unnecessary delays.
The deliberate exposure of political opponents and critics to the risk of contracting the deadly coronavirus is tantamount to the regime aiming a biological weapon at them. The regime is not only weaponising the law; it is also weaponising the coronavirus against opponents and critics. The regime is deliberately and purposefully putting its opponents and critics in harm’s way. This qualifies for “physical or psychological torture or to cruel, inhuman or degrading treatment or punishment” which is prohibited in absolute terms under the Constitution and also under international law.
Pandemic mishandling — Tragic failure of leadership
When Nelson Mandela was asked about the situation in Zimbabwe, he bemoaned the “tragic failure of leadership” in his neighbouring country. That characterization is still pertinent today and has been evident during the pandemic.
It is common cause that the second wave of the pandemic is wreaking more havoc than the first wave last year. The first wave, which was relatively weaker, seems to have lulled the government into a false sense of safety. By the end of 2020, the government and members of the public had dropped their guard. The consequences have been devastating across communities in Zimbabwe, with most victims being the elderly. While the pandemic is a great challenge across the world, countries that have open and competent governments have fared better than countries with dithering governments. The Zimbabwean government falls into the second category.
One problem with the Zimbabwean government is that the President, ministers, and senior government officials failed to lead by example. They made laws which they applied to everyone else except themselves. They forgot that the coronavirus does not know political allegiances or the boundaries between the politically powerful and the weak. They used the pandemic as an excuse to show favours to their favourites. For example, while banning by-elections ostensibly due to the pandemic, they allowed the MDCT to hold its Extraordinary Congress, a gathering became a superspreader event and claimed lives.
The flagrant disregard of the pandemic regulations was how Zanu PF bigwigs even held lavish parties in the middle of the pandemic. In one instance, the Minister of Information and Publicity, Monica Mutsvangwa held a birthday party in Harare which was attended by several senior public officials. The Permanent Secretary in her ministry, Ndavaningi Mangwana even flaunted pictures of the jaunt on social media, oblivious to the wrong message he was sending to citizens. There was no social distancing. They were not wearing masks.
The minister of Home Affairs, Kazembe Kazembe in charge of enforcing the pandemic regulations was also there. The same people who are responsible for disseminating Covid-19 information and enforcing the laws were violating them and there was no penalty for these violations. When the double standards were pointed out, they were defensive. But they were putting themselves and others at risk, apart from setting a poor example to the rest of the citizens. That is where they lost the moral authority over the fight against the pandemic. How could they tell citizens not to violate Covid-19 rules when they were trashing them so openly?
As if to reinforce the point of authoritarian tendencies, the regime also applied the law selectively. On New Year’s eve, two Mbare DJs, who ply their trade as Fantan and Levels, held a party for residents at the dilapidated flats commonly referred to as Matapi. This caused public outrage and the two DJs and their promoter was arrested for violating the pandemic regulations. However, it emerged that on the more affluent side of Harare, there had also been lavish parties. One was reportedly hosted by Kuda Tagwirei, a member of the Presidential Advisory Council who is also a wealthy and wellconnected business mogul.
It was by no means the only jaunt in town on that night. Yet none of those in these more affluent spots were arrested. It is yet another classic case of the law being selectively applied to members of the poor working class, while members of the wealthy class are protected. However, as things have turned out, while the culprits were not arrested under Covid-19 rules because they are politically powerful, the party appears to have been a super-spreader event with several casualties falling prey to the virus.