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Fanele Maqele v. Ngwabi Bhebhe and Midlands State University

Closed Expands Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    September 17, 2016
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    HB 129-16 HC 1250-16
  • Region & Country
    Zimbabwe, Africa
  • Judicial Body
    First Instance Court
  • Type of Law
    Administrative Law, Constitutional Law
  • Themes
    Freedom of Association and Assembly / Protests
  • Tags
    Social Media, Academic Freedom, Students

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Case Analysis

Case Summary and Outcome

In September 2016, the Bulawayo High Court of Zimbabwe lifted a suspension order of three Midlands State University students for passing on a WhatsApp message that had called for a mass student demonstration against inadequate facilities at campus housing. The Court held that the University’s failure to institute disciplinary proceedings promptly and fairly was unlawful and negated the students’ constitutional rights to administrative justice and further education. It said that the students’ right to protest was protected by the Constitution that guarantees freedom of expression which is the freedom to seek, receive and communicate ideas and other information. The Court reasoned that the university “should not only be a doyen for intellectual interaction but also a wonderful laboratory for freedom of expression and free flow of information.”

The Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

 

 


Facts

On April 11, 2016, three Midlands State University students, Fanele Maqele, Tendai Warambwa, and Aldrin Nyabando were suspended for violating Ordinance No. 2 of 2002, which broadly prohibits conduct that is likely or reasonably likely to be harmful to the interests of the university. The alleged violation occurred after the students posted a WhatsApp message in February 2016, urging their fellow students to protest against the poor living conditions at the main Zvishavane campus, including lack of sufficient air ventilation, shortage of water, electricity, and sanitation. Despite the fact that no major protest had occurred as a result of the message, all three students were served with similar suspension orders, signed by the vice chancellor of the school. They contained the following words:

“It has come to my attention that you breached Ordinance No. 2 of 2000 in that you are alleged to have posted a message on a Social Medial Platform Whats App calling on other students to go on an illegal demonstration. In terms of Section 8 (3) (d) Midlands State University Act, I do hereby suspend you from the University pending your appearance before the Student Disciplinary Committee to answer the above stated charges. During the period of your suspension you are not allowed to visit any of our campuses without my permission and a breach of this condition shall constitute another act of misconduct for which you will be duly charged.” [p. 2]

The suspensions barred the students from entering the school for the entire semester, pending their appearance before a disciplinary committee.

Later in May, the students submitted an urgent chamber application to the Bulawayo High Court of Zimbabwe, seeking to overturn their suspensions. They argued that the university decision banning them was “vague and did not clearly state the date of the hearings.” They also accused the university officials of “victimizing them on unfounded allegations.”


Decision Overview

Justice Nicholas Mathonsi of the Bulawayo High Court lifted the suspensions and ordered the re-instatement of the students.

Justice Mathonsi first addressed the question of whether the suspension orders complied with the students’ right to administrative justice contained in S3(1) of the Administrative Justice Act 2004 and Section 68 of the Zimbabwean Constitution, which require administrative proceedings to be “lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.” The Judge held that while the law allows for the issue of an indefinite suspension, undue delay in conducting a hearing by the university’s disciplinary committee “greatly prejudiced” the students as they risked missing their examinations. [p. 7]

Justice Mathonsi went on to consider whether the school’s decision was in accordance with Section 61 of the Zimbabwean Constitution which guarantees the right to freedom of  expression and the media. He ruled that the students’ call to protest on WhatsApp was not in any way offensive as it merely sought to mobilize support against the university’s decision to house them in a campus with inadequate facilities. He added that “individuals have the freedom to seek, receive and communicate ideas and other information. Why then should a university be seen to be working to stifle student rights when it was established with progressive objectives . . .” [p. 7]

 


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This decision expands expression because it affirms the fundamental rights to protest and education as guaranteed by the country’s constitution. It is also significant as it comes amid attempts by the Zimbabwean Government to ban public demonstrations and to limit the use of social media.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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