ZIMBABWEAN authorities have set free a man who had petitioned the Constitutional Court challenging his prosecution for allegedly undermining authority of or insulting President Robert Mugabe.
Themba Nyoni, aged 49 years and who resides in Gwanda in Matabeleland South province had filed an application in the Constitutional Court seeking an order declaring his prosecution for allegedly contravening Section 33 (2) (b) of the Criminal Law (Codification and Reform) Act Chapter 9:27 as unconstitutional.
Nyoni was arrested on Saturday 28 January 2017 and charged with undermining authority of or insulting the President in contravention of Section 33 (2) (b) of the Criminal Law (Codification and Reform) Act Chapter 9:27 after he allegedly told Abedinico Ncube, the Rural Development, Promotion and Preservation of National Culture and Heritage Minister that President Mugabe was too old and should consider stepping down from his position as the leader of the country.
In his application, Nyoni, who was represented by David Hofisi and Lizwe Jamela of Zimbabwe Lawyers for Human Rights had argued that the facts which are alleged to constitute the offending conduct would not, if proved at the trial, constitute the criminal offence with which he was charged.
However, on Wednesday 19 July 2017, the full Constitutional Court bench struck the matter off the roll by consent as the Acting Prosecutor-General Advocate Ray Goba had indicated in a letter addressed to the Registrar of the Constitutional Court on Monday 10 July 2017 that he had declined prosecution.
ZLHR has in recent years noted a dramatic increase in the arbitrary application of Section 33 of the Criminal Law (Codification and Reform) Act Chapter 9:23, where individuals have been charged with
Allegedly insulting or undermining the authority of the President’.
ZLHR’s records compiled since 2010 show that the organisation has attended to close to 200 cases where clients have fallen foul of this law and the bulk of the victims are residents and villagers residing
in the politically volatile Mashonaland Central province.
ZLHR has challenged the constitutionality of Section 33 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) on several occasions, on the basis that it infringes on freedom of expression, particularly of a public figure, and one who must be subjected to scrutiny as a political candidate.
In courts, the National Prosecuting Authority has in recent years and months been withdrawing charges against several suspects after declining prosecution and conceding before Constitutional Court judges that the allegations do not disclose the commission of an offence. This would be after ZLHR lawyers would have petitioned the country’s apex court seeking orders challenging the constitutionality of the insult law.
