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The High Court of Zimbabwe upheld the constitutional rights of an activist to peacefully criticize the government and acquitted him of subverting a constitutional government and incitement to commit public violence. Evan Mawarire posted a series of online videos calling for boycotts to protest the Mugabe government in Zimbabwe. The Court reasoned that the State had failed to prove that Mawarire’s videos included statements calling for the unlawful overthrow of the government or inciting the violence that occurred during the nationwide protests and that it was a violation of Mawarire’s constitutional rights to criminalize his conduct. The judgment confirms that national security offenses cannot be used in situations where activists are exercising their constitutionally protected rights to freedom of expression and association.
Evan Mawarire, a Zimbabwean political activist, was charged with two crimes against national security in connection with the #ThisFlag social media campaign he initiated. Between April and July 2016, Mawarire posted four online videos calling on Zimbabweans to boycott work and school and to “shut down Zimbabwe”. He was charged with two charges of subverting a constitutional government under section 22(2)(a) and, in the alternative, with incitement to commit public violence under section 187(1)(a) of the Criminal Law (Codification and Reform) Act Chapter 9:23. The State alleged that his statements in the online videos encouraging the boycotts constituted the dissemination of subversive views with the view to “overthrow the government by unconstitutional means” (p. 2). The incitement charges related to action taken, supposedly in support of Mawarire’s statement, by other individuals to block a number of roads throughout the country and throw stones at buses and police vehicles.
The criminal case was heard in the High Court in Harare in September 2016.
Chigumba J delivered the judgment of the High Court.
The State argued that the online videos had sought to overthrow the government, and that the violence committed during the boycotts was directly connected to Mawarire’s statements.
Mawarire argued that there “is no evidence in any of these videos that he incited anyone to engage in violence or unconstitutional behaviour”. On the contrary, he said that it was clear from the videos that he said “but remember no violence, no fighting, let us keep it truthful to this government to let them know that we want to build a different Zimbabwe” and “there shall be no violence” (p. 9). He submitted that this meant that “his message on non-violent confrontation of government (constitutional means) was clear, as well as his message of peace and respect for the law” (p. 10).
Mawarire submitted that criminalising his conduct in making the online videos calling for the boycotts would constitute a violation of the right to freedom of assembly and association, protected in section 58 of the Constitution; the right to demonstrate and petition, protected in section 59 of the Constitution; the right to freedom of expression, protected in section 61 of the Constitution; and the right to “participate in peaceful activities, to influence, challenge or support the policies of the government or any political or whatever cause”, protected in section 67 (p. 10). Mawarire also argued that he did not act, or attempt to act, in concert with anyone and did not disturb the public peace, security of order, invade the rights of others, or intend any disturbance or invasion of rights (p. 8).
Chigumba assessed the elements of the crimes of subverting a constitutional government and incitement to public violence. The offence of “subverting a constitutional government” under section 22(2)(a) of the Criminal Law (Codification and Reform) Act requires an attempt to overthrow the government through “unconstitutional means”, and Chigumba noted that this is defined as “any process which is not provided for in the Constitution and the law” (p. 7). The public violence offence requires the accused to have acted in concert with others to “disturb the peace, security or order of the public” or “invade the rights of others”.
Chigumba observed that Mawarire had not called on people to engage in the type of conduct that had led to the charges of public violence, for example, he had not called on citizens to “stone motor vehicles”. The Judge also noted that a witness for the prosecution admitted that Mawarire “did not preach violence and that, in none of the four videos does the accused mention taking over the government” (p. 11). Another prosecution witness admitted that “no member of Hashtag This Flag is identified as a perpetrator of violence in any of those reports [on the disturbances during the boycotts]” (p. 12). The same witness said he did not know if Mawarire’s videos had been the cause of these disturbances.
Chigumba stated that in determining whether Mawarire was guilty of the two charges he had to determine whether Mawarire “in any manner, communicate[d] with other citizens, intending to persuade or induce them to commit a crime, or realizing that there was a risk of the citizens committing a crime” (p. 14).
Chigumba stated that Mawarire “used his Constitutionally guaranteed rights to freedom of assembly and association with others, his right to demonstrate and petition, his right to freedom of expression, to seek, receive and communicate ideas, and his right to participate in gatherings or in a group to influence, challenge and or support the policies of government”. He accepted that these rights were not absolute, and that the Constitution requires them to be exercised peacefully. However, Chigumba held that Mawarire “used constitutionally guaranteed rights, and that, he did not exceed the limitation on those rights, he never advocated that those rights be exercised in anything other than a non-violent way”. The Judge commented that Mawarire had called for prayers for peace and asked “[h]ow can prayers for peace be considered unconstitutional means of removing a constitutional government?”. Chigumba added that Mawarire’s “criticism of government policies is permissible in terms of the Constitution, and there is no evidence that he urged a violent removal of the government”. Accordingly, Chigumba concluded that the State had failed to prove that Mawarire sought an overthrow of the government through “unconstitutional means” and acquitted Mawarire on the main charges (p. 15).
Chigumba also acquitted Mawarire on the alternative charge of incitement to violence as he again held that the State had not proved that Mawarire had disturbed the peace or invaded the rights of others. He held that as Mawarire had repeatedly called for non-violence there was no intention or recklessness on his part and so his conduct did not meet the requirements for incitement to public violence (p. 16).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment confirms that national security offenses cannot be used in situations where activists are exercising their constitutionally protected rights to freedom of expression and association.
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