IN THE MAGISTRATE’S COURT CRB NO: 3101-2/07
FOR THE PROVINCE OF MATEBELELAND

In the matter between:
JENNIFER WILLIAMS 1st ACCUSED

and

MAGODONGA MAHLANGU 2nd ACCUSED

and

THE STATE RESPONDENT

1. The accused persons are facing a charge of allegedly contravening Section 37(1) (a) (i) of the Criminal Law (Codification and Reform) Act (Participating in Gathering with Intent to Promote Public Violence, Breaches of Peace or Bigotry) alternatively Section 46 thereof as read with Section 2(v) of the Third Schedule (Criminal Nuisance). It is being alleged that on the 6th of June 2007 the accused persons together with c group of about 25 other women assembled at the entrance of the Bulawayo Central Police Station and demanded the unconditional release of five of their WOZA members who had been arrested.

2. They are presently on remand on bail in the Magistrate’s Court in Bulawayo.

3. The application in casu is made in terms of Section 24(2) of the Constitution of Zimbabwe. The basis for the application is that the aforesaid sections under which, the accused persons are charged violate sections 20, 21, and 22 of the Constitution, which protect the right to freedom of expression, assembly and association as well as the right to freedom of movement respectively.

4. For starters, Section 37 (1) (a) (i) of the Code is couched in such wide and broad terms that make it extremely difficult if not impossible to comprehend the demarcation of the offence. The stated consequences for that matter do not even need to occur. It suffices for conviction that there was a real risk on possibility of those possible consequences eventuating.

5. In the result, all forma of gatherings are thereby placed at risk. The section unduly strikes that the heart of all gatherings. It presents a chilling effect on all gatherings so much so that all kinds of gatherings for whatever purpose can be said to fall within the ambit of the section. It is open to abuse and potentially prohibits all forms of public gatherings or processions.

6. In the circumstances, it thus violates the right to freedom of assembly and association, right to freedom of expression and right to freedom of movement.

7. Seeing as the offence is not only based on the occurrence of certain results, but is also premised on likelihood, in a similar case the Supreme Court in the matter of The State -v- Tsvangirai 2001(2) ZLR426 (5) condemned such wording in legislation.

8. Under Section 50(2) of the repealed Law and Order Maintenance Act (LOMA) an act of terrorism was defined as one likely to cause certain specified results.

9. The Supreme Court in ruling the Section to be unconstitutional remarked as follows:
“By defining an act of terrorism or sabotage widely and vaguely – in particular by defining it as an act that was “likely” to have certain results) and stating those results in extremely broad terms – the section would tend to inhibit persons from legitimately exercising their freedom of expression for fear of falling foul of the law) and would encourage arbitrary and erratic arrests and convictions.”

10. It is this submitted that Section 37(1)(a)(1) which is similarly worded to Section 50 (2) of the repealed LOMA also offends against the constitution.

11. The alternative charge similarly violates Section 20 on freedom of expression, section 21 on freedom of assembly and association and section 22 on freedom of movement.

12. There is no clear-cut definition of what acts are likely to constitute or create a criminal nuisance. It is again couched in such wide, vague, imprecise and all catching terms that make it difficult for people to determine when they can be said to have committed an offence and whey they would still be within the ambit of the law.

13. The offence is premised on likelihood. The results do not have to eventuate. It is a speculative offence that encourages arbitrariness in its enforcement.

14. In the case of Chavunduka and Amor- v- Minister of Home Affairs and Amor 2001 ZLR 552(8) the Supreme Court was faced with a similarly worded section of the repealed Law and Order Maintenance Act. The said Act in Section 50(2) prohibited the making of false statements likely to cause fear, alarm and despondency. The Supreme Court ruled the section to be unconstitutional and struck it down. It reasoned thus at page 553B.

“statutory vagueness cannot be allowed where freedom of expression is at issue; the law must be precise enough to enable a person to regulate his conduct. The provision was far too wide and vague. It forbade statements «likely” to cause fear, alarm and despondency, as opposed to actually causing it. ”

It went on to say at page 561B that:

“It is crucial, therefore, that the law must be accessible and formulated with sufficient precision to enable a person to regulate his conduct. He or she must know, with reasonable certainty, what the law is and what actions are in danger of breaching the law.”

It further stated on the same page in paragraph D that:

“a court must ensure that if human conduct is to be subjected to the authority of any criminal law, the terms of such law must not be vague; or otherwise there will be a denial of due process. ”

15. On the offence being founded on mere likelihood of occurrence of certain consequences the same court at page 562 B reasoned that :

“There is no requirement of proof of any consequences – of damage to the state or impact upon the public. What the lawmaker has provided for is a speculative offence. An offence has been created out of a conjectural likelihood of fear, alarm or despondency which may arise out of the publication of any statement. .. ”

16. The Supreme Court went on to rule that the section was too vague, being susceptible to too wide an interpretation. The aforesaid sections of the Criminal Code are similarly worded and thus fail to stand the constitutional test. They are manifestly ultra-vires the constitution and there is a very high possibility the Supreme Court may rule them to be unconstitutional.

17. This court is therefore urged to refer this matter to the Supreme Court for a determination on the constitutionality or otherwise of those sections under which the accused persons are charged.

DATED AT BULAWAYO THIS 18TH DAY JUNE 2007

JOB SIBANDA AND ASSOCIATES
ACCUSEDS’ COUNSEL
3RD FLOOR, FORESTRY COMMISSION BUILDING
FIFE STREET/L. TAKAWIRA AVENUE
BULAWAYO (Mr Sibanda/nm)

TO: THE CLERK OF COURT
Magistrate’s Court
BULAWAYO

AND TO: THE PUBLIC PROSCECUTOR
Court 2
Tredgold Building
BULAWAYO