By Opal Masocha Sibanda
The arrest of Hopewell Chin’ono (journalist) and Jacob Ngarivhume (Transform Zimbabwe leader) has made us think again about the extent to which the fundamental right to freedom of expression is promoted and protected in Zimbabwe.
This is not the first time individuals have been arrested for criticizing the government in Zimbabwe. The two are well known for criticizing the government as they have been using various social media platforms to condemn and expose corruption. The two have been charged with incitement to participate in a gathering with intent to promote public violence and breaches of peace or bigotry (section 187 (1) (a) as read with section 37 (1) (a) (i) of the Criminal Law [Codification and Reform] Act Chapter 9:23. An alternative charge of incitement to commit public violence has also been levelled against them.
Citizens have been left wondering whether these arrests were justified, with many raising concerns on the use of the criminal justice system to silence journalists and human rights activists in Zimbabwe. This piece generally speaks to the right to freedom of expression as enshrined in the Constitution of Zimbabwe, justifiable limitations of the right to freedom of expression and recommendations to the government of Zimbabwe.
The Zimbabwean Constitution provides for the right to freedom of expression in section 61. The right to freedom of expression is further protected in article 19 of the International Covenant on Civil and Political Rights (ICCPR) which provides for the right of individuals to hold opinions without interference and the right to freedom of expression which includes freedom to seek, receive and impart information and ideas of all kinds.
At a regional level, article 9 of the African Charter on Human and People’s rights (African Charter) protect the right to freedom of expression. It is important to note that Zimbabwe ratified both the ICCPR and the African Charter hence it is duty bound to respect, promote and protect the rights enshrined in these two instruments; in this instance the fundamental freedoms of free speech, media freedom and access to information.
It is important to note that the right to freedom of expression is not an absolute right as it is subject to limitations. Article 19 (3) of the ICCPR states that the right to freedom of expression is subject to restrictions which should be provided by law and are necessary for the respect of the rights or reputation of others or for the protection of national security or of public order or of public or health morals.
Whilst noting that the right to freedom of expression can be justifiably limited, it should not be ignored that courts adopt a three pronged approach in justifying whether the right can be justifiably limited. The limitation should be (i) provided for by law, (ii) be for a legitimate purpose and (iii) be necessary to achieve the prescribed purpose. As such, although the government may argue that the arrest of Chin’ono and Ngarivhume is justified; I do not share the same sentiments and argue that his arrest does not meet the criteria mentioned above. I am going to discuss this briefly hereunder.
Provided for by law
This entails that the limitation on the right should be prescribed by law. This further requires the law to be drafted with accuracy and precision. Section 61 (5) (a) of the Constitution of Zimbabwe provides that freedom of expression and freedom of the media exclude incitement to violence. Incitement to violence is further regulated in the Criminal Law [Codification and Reform] Act.
Whilst the law is clear in this aspect, it is still not clear as to how Chin’ono and Ngarivhume incited violence. Criticism of government officials and exposing corruption does not amount to incitement of public violence in my own view.
To serve a legitimate purpose
The only legitimate grounds for limiting rights and freedoms are stipulated in article 27 (2) of the African Charter that is, the right ‘must be exercised in respect of other people’s rights, collective security, morality and common interest.’ Charging Chin’ono and Ngarivhume with inciting violence because they have been criticising the government and exposing corruption does not serve a legitimate purpose. After all, as a high figures, the President, senior government officials and politicians should be open to criticism which is common in a democratic society.
Citizens should be free to criticize government authorities on social media and government’s attempts to thwart such criticism is unconstitutional. Speaking out against the government wrongdoing in my view is the quintessential freedom. It is also surprising that the government is assuming that the alleged planned 31 July demonstration will be violent. After all, the police and the members of the military are the ones with a history of using excessive force on unarmed civilians. As such, the arrest of Chin’ono and Ngarivhume does not serve a legitimate purpose.
Necessary to achieve the prescribed purpose
The prerequisite of necessity entails a component of proportionality, in that the scope of the limitation imposed on the enjoyment to freedom of expression should be proportional to the value which the limitation serves to safeguard. The use of criminal sanction to limit the right to freedom of expression is not necessary in a democratic society.
This is cemented by principle 35 of the African Commission Declaration of Principles on Freedom of Expression and Access to Information in Africa which provides that ‘no person shall be subject to civil, criminal, administrative…or other sanctions or harm, for releasing information on wrongdoing or which discloses a serious threat to health, safety or the environment, or whose disclosure is in the public interest, in the honest belief that such information is substantially true.’ As such, the arrest of Chin’ono and Ngarivhume is not necessary in a democratic society.
In light of this, it is my view that the government of Zimbabwe has and continues to violate the fundamental right to freedom of expression as enshrined in the Constitution, the ICCPR and the African Charter. Freedom of expression is one of the fundamental freedoms in a democratic society. Respect, protection and fulfilment of the right to freedom of expression is therefore essential and indispensable for the free development of the human person, the creation and nurturing of democratic societies and for enabling the exercise of other rights.
The government of Zimbabwe is therefore called upon to respect individuals’ fundamental right to freedom of expression, media freedom and create an enabling environment for the exercise of the right to freedom of expression. Using the criminal justice system to cripple journalists and critiques of the government in Zimbabwe is condemned. The state should also take effective steps to address corruption that has crippled the country’s economy and stop silencing people who speak up against corruption.
Opal Masocha Sibanda is a Zimbabwean lawyer currently pursuing a Masters in Human Rights and Democratisation in Africa at the Centre for Human Rights, University of Pretoria. She is reachable on +27623399317 or +263775387372(WhatsApp).