The outline of the case for the prosecution, from which the
particulars of the charge were taken, read as follows:
“(1) The accused in this case is Douglas Togarasei
Mwonzora, a male adult aged 41 years of Nyamubarwa Village, Chief Saunyama,
Nyanga and is the Honourable Member of the House of Assembly from the Movement
for Democratic Change (Tsvangirai faction) for Nyanga North Constituency.
(2) The complainant is the State.
(3) On 21st day of March 2009, between 1300
hours and 1700 hours, and at Ruwangwe Growth Point, Nyanga, accused, being a
third guest speaker at a political gathering of the Movement for Democratic
Change (Tsvangirai) Party, made statements concerning the President of the
Republic of Zimbabwe, His Excellency Robert Gabriel Mugabe, well knowing that
there is a real risk or possibility that those statements may engender feelings
of hostility towards or cause hatred, contempt or ridicule of the President in
person or his office.
4. The accused, during his speech, uttered words to the
effect that President Mugabe is a goblin and will vacate office running as
quoted in Shona, 'President Robert Mugabe chikwambo uye achamhanya'; literally
meaning that 'President Robert Mugabe is a goblin and he will run'; a statement
that will engender the President in person. (sic)
5. To ensure that the President Mugabe's goblin statement
is understood by the gathering, the accused sang a song commonly known as
'GEHENA' (ARMAGEDEON) in which he led the song with the following Shona lyrics:
'Ndawona Mugabe achigeza, tauro muchiuno, sipo huhapwa nendebvu hwapepe';
literally meaning 'I saw Mugabe bathing, towel on waist, soap under armpits and
big beard'; and he started fanning his nose as if the goblin he was talking
about was smelling.
6. The accused also uttered some statements which may cause
hostility or hatred towards the President's Office when he said that only the
Movement for Democratic Change must live long casting other Governments as bad,
corrupt, full of thieves, arresting innocent people and illegally taking away
people's property well knowing that President Mugabe belongs to ZANU-PF which
was once the ruling Government when the accused said the following in Shona;
'Pamberi ne MDC. Pasi nechihurumende chembavha, chinosunga
vanhu vasinamhosva, chichi vatorera zvinhu zvavo'; literally meaning 'Forward
with MDC, down with the bad Government of thieves which arrests innocent people
and takes away their property.'
7. Police officers who were on duty at the gathering and
independent individuals who attended the gathering saw and heard the accused
making the statements which are being taken as undermining or insulting the
President of the Republic of Zimbabwe in person and his office.”
At the commencement of the hearing of submissions on the
question referred for determination, counsel for the applicant raised a
preliminary point to the effect that the charge was verbose, repetitive and
lacked the precision and clarity of particulars of the alleged offending
conduct to enable the applicant to know the case he was to answer.
The contention was that the vagueness of the charge
violated the applicant's right to the protection of the law ensnhrined in section
18(1) of the Constitution. The further contention was that the facts which were
alleged to constitute the offending conduct would not, if proved at the trial,
constitute the criminal offence with which the applicant was charged.
If the Court finds that the facts on which the charge was
based would not, if proved at the trial by available evidence, have constituted
an offence, it would not be necessary to go into the question of the
constitutional validity of section 33(2)(a) of the Criminal Law Code. Basing a
criminal charge on facts which, if proved at the trial, would not constitute an
offence would be a violation of an accused's right to the protection of the
law.
No one can be subjected to criminal proceedings before a
Magistrates' Court without a charge or summons. The public prosecutor is given
the power, as a representative of the Prosecutor General, to prefer a charge
against a person accused of an offence in the Magistrates' Court on behalf of
the State. As the content of the right
to the protection of the law guaranteed to every person under section 18(1) of
the Constitution, section 18(3)(b) requires that any person who is charged
with a criminal offence must be informed, as soon as reasonably practicable, in
a language that he or she understands, and in detail, of the nature of the
offence charged.
Section 139 of the Criminal Procedure and Evidence Act
[Chapter 9:07] (“CP & E Act”) provides that where a public prosecutor has,
by virtue of his or her office, determined to prosecute any person in a
Magistrates' Court for any offence within the jurisdiction of that court, he or
she shall forthwith lodge with the Clerk of Court a statement, in writing, of
the charge against that person setting forth shortly and distinctly
the nature of the offence and the time and place at which it was committed….,.
The object of a charge is to inform the accused person, in
sufficient detail and clear language, of the offence with which he or she is
charged to enable him or her to consider the accusation. The charge must state
the essential elements of the offence with sufficient precision and provide
sufficient particulars of the acts or omissions alleged to have been committed
which constitute the criminal offence. The accused person must not be left to
guess or speculate as to the true nature of the offence he or she is charged
with and the case he or she has to answer.
In S v Hugo 1976 (4) SA 536 (A)…, E MILLER JA said:
“The clear intention is and indeed it is only fair that
sufficient particulars should be furnished in order to enable an accused to
prepare his defence.”
As the public prosecutor is dominus litis and has the right
to determine the charge which he or she wants to prefer against an accused
person, it is his or her duty to ensure that the accused is charged with the
correct offence. It is also the public prosecutor's duty to ensure that only
necessary particulars relating to acts or omissions alleged to have been
committed by the accused person which constitute the offence are included in
the charge.
Where the offence relates to specific types of statements
made with an intention to bring about a prohibited consequence only particulars
of such statements need to be included in the charge.
The charge preferred against the applicant included
statements he is alleged to have uttered to the audience at the political
gathering the contents of which were not about or concerning the President. The
contents of the statements could not be said to be false nor could they be said
to have the consequences prohibited by the statute. For example, the political
slogan exalting the MDC-T party and the statement on corruption in Government
had nothing to do with the essential elements of the offence.
The charge was made up of three parts. The first part was a
recitation of the essential elements of the offence. The second part was
irrelevant. Whilst it opened with words that suggested that it referred to
false statements the applicant was charged with making, it revealed a
misconception of the essential elements of the offence charged.
It was alleged, in part two of the charge, that the
statements made in the Shona language were false.
There was no allegation that the applicant knew that the
statements were false. There was, instead, an allegation that the applicant had
an intention 'that the statements may engender feelings of hostility towards or
cause hatred, contempt or ridicule of the President.' It would have been
difficult for the applicant to understand the nature of the offence he was
alleged to have committed when the charge was based on different statements
made in his speech which were open to contradictory meanings. There was the
statement that the President was a goblin. That was put together with a
political slogan exalting the MDC-T and a statement that there was corruption
in Government. All these statements were said to be about or concerning the
President. They were all said to be false and made with the intention of
engendering feelings of hostility towards the President. All the statements
could not constitute particulars of the essential elements of the offence the
accused was charged with.
The manner the charges were levelled against the applicant
violated his right to the protection of the law.
The State did not comply with the requirements of section
18(3)(b) of the Constitution. It also failed to comply with the requirements of
section 139 of the Criminal Procedure and Evidence Act [Chapter 9:07] designed
to protect a person charged with a criminal offence.
There are remedies provided for by the law for the
protection of a person charged with an offence from the consequences of defects
in the charge related to lack of clarity in the particulars of the offence he
or she is alleged to have committed.
Section 178(1) of the Criminal Procedure and Evidence Act
[Chapter 9:07] gives an accused person the right to apply to the court, before
pleading, to quash the charge on the ground that it is calculated to prejudice
or embarrass him in his or her defence.
Section 180(1) of the Criminal Procedure and Evidence Act
[Chapter 9:07] gives the accused person who considers that a charge is framed
in vague language or that the particulars of the offence are not disclosed in a
manner that enables him or her to answer the charge to except to it on the
ground that it does not disclose any offence cognizable by the court. The
magistrate is obliged to hear the exception and determine whether it is well
founded. If the exception is well-founded the magistrate has the power to
dismiss the charge.
The procedure provided for under section 178(1) of the
Criminal Procedure and Evidence Act [Chapter 9:07] is based on the presumption
of the fact that there are facts of the conduct of the accused on the basis of
which a reasonable suspicion exists of him or her having committed the offence
charged. The defect in the charge would lie in the failure by the public
prosecutor to state the particulars of that conduct in clear and sufficient
detail so as to inform the accused of the nature of the offence to enable him or
her to answer it. If it is a defect that can be rectified without prejudice to
the accused's ability to defend himself or herself his or her right to the
protection of the law is enforced by an order that the defect be removed or
rectified. The procedure provides appropriate remedy for the redress of the
type of wrong arising from the drafting of the charge.
The type of wrong suffered by the applicant could not be
addressed by the application of that remedy.
Initially, the complaint was that section 33(2)(a) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] violated the
applicant's fundamental right to freedom of expression enshrined in section
20(1) of the Constitution.
At the commencement of the hearing, the court directed
counsel to file supplementary heads of argument to address the question whether
the facts on which the charge was based would, if proved at the trial,
constitute an offence. There is public interest in the strict enforcement of
the rule in the field of criminal law to the effect that no person should be
charged with an offence on the basis of facts which, if proved at the trial,
would not constitute an offence. Section 180(1) of the Criminal Procedure and
Evidence Act [Chapter 9:07] gives an accused person the right to invoke the
protection of this fundamental principle of the right to the protection of the
law. Effective judicial protection of a person charged with a criminal offence
requires strict enforcement of the rule in question.
In Williams & Anor v Msipha N.O. & Ors 2010 (2)
ZLR 552 (S), the applicants had been charged with contravening section
37(1)(a)(i) of the Criminal Law Code. They raised before a magistrate who was
about to commence the trial of the charge preferred against them the question
of the unconstitutionality of section 37(1)(a)(i) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. They also raised the question of
the violation of their fundamental right to the protection of the law enshrined
in section 18(1) of the Constitution. They requested the magistrate to
refer the question of the constitutional validity of section 37(1)(a)(i)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23] to the Supreme
Court for determination on the ground that their prosecution and remand based
on the alleged contravention of that law were a violation of their right to the
protection of the law.
The magistrate, in Williams & Anor v Msipha N.O. &
Ors 2010 (2) ZLR 552 (S), refused the request for a referral of the
constitutional question to the Supreme Court for determination on the ground
that the raising of the question, and, ipso facto, the request for referral,
was frivolous and vexatious. On an application in terms of section 24(1) of the
Constitution, the Supreme Court did not go into the question of the
Constitutional validity of section 37(1)(a)(i) of the Criminal Law Code. It
took the view that the facts on which the charge was based would not, if proved
at the trial, constitute the offence charged or any other offence.
The Supreme Court proceeded, in Williams & Anor v
Msipha N.O. & Ors 2010 (2) ZLR 552 (S), on the basis of the assumption
that section 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] was valid. At p 571C, the Court set out the applicable principle
saying:
“To determine the question whether the conduct committed by
the applicants and for which they were charged with the crime of contravening
section 37(1)(a)(i) of the Act would, if proved at the trial, constitute the
offence they were charged with, the magistrate was required, under s 13(2)(e)
of the Constitution to take into account the essential elements of the offence
and the conduct which, if proved at the trial, would constitute the offence
charged. He was required to apply the knowledge of the statute to the conduct
actually committed by the applicants and decide whether it constituted the
proscribed conduct.
The thrust of Mr Mpofu's
argument was that the effect of the protection the Constitution provides
for the fundamental right to personal liberty would be evaded if a court did
not examine the facts on which a charge laid on an accused person is based and
evaluate them according to the objective standards prescribed by section
13(2)(e) of the Constitution.”
The court held, at 570G-H….,:
“A reasonable suspicion that an accused person has
committed the offence with which he or she is charged presupposes that the
facts on which the charge is based would, if proved at the trial, constitute
the offence. Where the accused person challenges the legality of the charge on
the ground that the offence itself was not committed, the onus is on the State
to first show that, if proved at the trial, the facts on which the charge is
based would constitute the offence with which the accused person is charged.”
Applying the test enunciated in Williams & Anor v
Msipha N.O. & Ors 2010 (2) ZLR 552 (S) to the facts of this case, it
is apparent that the applicant did not commit an offence.
One of the essential elements of the offence of
contravening section 33(2)(a) of the Criminal Law Code is that the statement
about or concerning the President must be false. The outline of the State case
made no reference to the falsity of the statements the applicant was accused of
having uttered. All the statements contained in the outline of the State case
allegedly made by the applicant could not be false.
The prohibited statement must be about or concern the
President or his office. The slogan exalting the MDC-T political party and the
statement on corruption in Government could not have been about or concerning
the President. They could not be described as false statements either. The
sarcasm in the conveyance of the message may have offended some of the
listeners. It did not, however, make the message itself false. It was necessary
for the State to indicate the false statements uttered by the applicant because
it was required to state facts that would prove that the applicant had
knowledge of the falsity of the statements.
The statement that the President was a goblin was obviously
a false statement.
The offence is however not committed because a person has
uttered, at a public place, a false statement about or concerning the
President. The statement must be accompanied, at the time of its utterance, by
the knowledge of its falsity and an intention to use it to engender feelings of
hostility in the audience against the President. That is not even enough for
the offence to be committed. The State must prove, beyond reasonable doubt,
that the false statement about or concerning the President was capable of
deceiving the hearer into believing it is true and that it was likely to arouse
in the audience feelings of hostility towards the President or his office.
A patently false statement to the effect that the President
is a goblin was unlikely to deceive any right thinking person into believing
that it is true. It was unlikely to engender in the hearer feelings of
hostility towards the President. In other words, a statement that is patently
false that no right thinking person can believe it to be true cannot carry the
intent to inflame in the audience feelings of hostility towards the President.
The statement the applicant is alleged to have uttered did
not even allege that the President had done anything that could have adversely
affected the interests of people generally or those in the audience for it to
arouse feelings of hostility towards the President. Such a statement cannot
hold up the President to ridicule.
The public prosecutor did not understand the essential
elements of the offence.
The outline of the State case suggests that he or she
thought that the statute criminalised the causing of some danger to the
President. The outline of the facts alleged that the statement that the
President was a goblin would “engender the President in person.” That is, of
course, meaningless. The outline of the case for the prosecution goes on to
allege that the false statement was “taken as undermining or insulting the
President.” What is undermined under section 33(2)(a) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] is the authority of the President.
The applicant was not charged with the offence of insulting the President.
Proof of that offence, which is under section 33(2)(c) of the Criminal Law Code
would, not require proof that an accused person made a false statement about or
concerning the President as an essential element of the offence.
The finding by the Court is that if the facts alleged in
the outline of the case for the prosecution were proved at the trial of the
applicant they would not have constituted an offence.
It is declared that the prosecution of the applicant, on
allegations of having contravened section 33(2)(a) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] amounted to a deprivation of his personal
liberty, save as would have been authorised by law, in contravention of section
13(1) of the Constitution and was a denial of the fundamental right of the
applicant to the protection of the law guaranteed under section 18(1) of the
Constitution.
There shall be no order as to costs.
The application, for an order declaring section
33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
unconstitutional is, for the purpose of this case, dismissed with no order as
to costs.
