HARARE – Like a deck of cards, President Robert Mugabe’s countless insult cases have over the years collapsed one after the other, with the latest being that of former Zanu PF youth leader William Mutumanje — popularly known as Acie Lumumba.
Over the past years, a number of people have been hauled before the courts charged under Section 33 of the Criminal Law for insulting 93-year-old Mugabe.
But there has been a striking resemblance of failure by the State to prove the cases, as the insult law has proved to be constitutionally defective and impedes on the people’s right to freedom of expression.
When Lumumba’s case was brought before the Constitutional Court, the State stated that it was withdrawing the criminal case against the former Zanu PF youth leader on the basis that there is a set precedence in another case involving MDC secretary-general Douglas Mwonzora.
Like many, Mwonzora had attacked Mugabe, calling him a “goblin” during a rally in Nyanga. But the case was left without legs to stand on after the court asked the State to give a thorough description of a goblin and how that was linked to the nonagenarian leader.
The State failed to explain what a goblin is, hence the court’s further interrogation into whether the prosecutor believed Mugabe was a goblin.
That was the end of the story as the answer was in the negative, with the court making it clear that these were just political statements.
Mwonzora had approached the Constitutional Court, challenging the constitutionality of the charges, arguing that the State was infringing upon his right to freedom of expression.
Although this set the tone for the determination of the cases that were to follow including the Lumumba case, the police have not stopped from dragging people to court for mere bar talks and jests.
For Lumumba, he had been hauled before the courts following statements he made during the official launch of his political outfit Viva Zimbabwe at a local hotel in Harare on June 30 last year.
During his address Lumumba, referring to Mugabe, reportedly said; “You have not been insulted, you are only insulted by protesters.
“…Mugabe f**k you, I am drawing the red line, our kids are in trouble so, it’s a red line…and my name is Lumumba, Lumumba, Lumumba.”
This landed him in trouble.
Many like Lumumba have found themselves condemned in prisons for passing a comment that either reprimands or challenges, or if the police feel like it, insults the president.
Although the Constitution guarantees freedom of expression, that right falls away the moment one has Mugabe in their statements.
According to the Zimbabwe Lawyers for Human Rights (ZLHR), a civic rights group which represents ordinary people in legal matters, by 2016, it had represented over 150 persons since 2010, who were dragged to court charged with insulting Mugabe.
Still those are the lucky ones who would have access to the lawyers, for some are just arrested by the police and then released after some time behind bars.
Lawyers have previously castigated the Mugabe insult law, which they argued defied the rule of law.
In October 2010, Zebediah Mpofu, a Harare resident, found himself victimised under the same section.
Mpofu, a general hand at a private security firm had stated that “President Mugabe had ruined the country and that he was going to be dead by December 2010 then MDC leader Morgan Tsvangirai would take over as president of Zimbabwe.”
The prosecutors charged that by uttering such statements Mpofu had undermined the authority or insulted Mugabe.
However, Mpofu’s agony ended in October 2011 after a magistrate removed him from remand and ordered the State to proceed by way of summons.
In 2011, the now Chief Justice Luke Malaba ruled that the State’s facts which led to the arrest of a Bulawayo girl on allegations of sending Mugabe’s “nude” picture on the social network, WhatsApp, were confused.
Malaba was commenting on the case of Shantel Rusike, who was charged under the same section after sending a WhatsApp picture depicting a nude Mugabe.
Underneath the picture was written; “Robert Mugabe turning 87 years on 21 February 2011. Happy birthday (Matibili Operation).”
An informant advised security agents who intercepted the picture, leading to Rusike’s arrest. The girl then filed a Constitutional Court application, seeking to have the charges quashed.
In 2012, a Beitbridge magistrate Auxillia Chiumburu freed a South Africa-based Zimbabwean vendor Benias Gwenhamo Madhakasi, who had been languishing in remand prison after he was arrested in April, 2012 at Beitbridge Border Post and charged with contravening Section 33.
He was found in possession of skeletal nude pictures portraying Mugabe’s images in his mobile phone handset and one of the pictures had an inscription which read; “Happy 87th birthday (Operation Matibiri) Robert Mugabe turning 87 years on February 21 2011.”
However, the case crumbled on July 24, 2012 after Chiumburu removed Madhakasi from remand and ruled that the State’s antics were equivalent to a fishing expedition.
In May 2013, Bindura magistrate Tendayi Chifamba acquitted former Energy and Power Development minister Elton Mangoma who had been on trial on charges of undermining the authority of or insulting the president.
In January 2014, then Attorney General Johannes Tomana conceded that facts forming criminal charges against Bulawayo-based artist Owen Maseko, who was accused of insulting Mugabe, did not constitute an offence.
Maseko was accused of publishing “offensive” Gukurahundi paintings prompting the Constitutional Court to summon Justice minister Emmerson Mnangagwa, to justify the constitutionality of the offence.
Mnangagwa, through the Attorney General’s office told the court that the law was justifiable in a democratic society.
Mugabe’s friends-turned-foes like war veterans leaders Douglas Mahiya, Victor Matemadanda, Francis Nhando, Headman Moyo and Hoyini Samuel Bhila, were once accused of undermining the president in cases that also fell by the wayside.
Only last week, Pentecostal Church leader Phillip Mugadza, who is accused of “predicting” Mugabe’s death had his case referred to the Constitutional Court for determination.
He is however, charged with causing offence to persons of a particular race and religion in contravention of Section 42 (2) of the Criminal Law (Codification and Reform) Act Chapter 9:23 alternatively criminal nuisance.
In his application for referral, Mugadza argued that while the Constitution protects all manner of expression, these two provisions criminalise distinct forms of expression hence it is clear that Section 42 of the Criminal Law (Codification and Reform) Act is a limitation on free expression.