Judgment No. CCZ 11/15 2
Const. Application No. CCZ 28/11
similar order in relation to s 182 (1) of the Code, for its alleged violation of s 20 (1) of the
Constitution. At the hearing of this matter, the applicant abandoned the relief relating to s 31
(a) (iii) of the Code on the basis that the section had already been struck down as being
unconstitutional in the case of Chimakure v Attorney General SC 14/2013. As a result, no
reference will be made in this judgment to the charges preferred against the applicant under
this Section.
The facts of the matter may be summarised as follows. On 20 April 2008, the
applicant, who was then involved in the country’s politics and was a leader of an opposition
party, wrote and caused to be published in an independent weekly newspaper, an article
entitled “A shameful betrayal of national independence.” Jointly with a director and the
editor of the newspaper in question, the applicant was arrested on 1 June 2008 on allegations
that they had contravened s 182 (1) (a) of the Code, in addition to s 31 (a) (iii) of the same
Act. In relation to the former, the applicant was alleged to have published an article that was
contemptuous of the High Court of Zimbabwe. The offending words in the article were:
“In terms of the House of Assembly (sic), the agenda is to seize at least nine seats
from the opposition through recounts and court action leading to re-runs. This
explains the 23 recounts ZEC had instituted. There is clearly criminal collusion
between ZEC and ZANU PF. To add insult to injury, this unlikely marriage is
dutifully consummated by a compliant and pliable judiciary typified and exemplified
by Judge Tendai Uchena’s unreasonable and thoughtless decision not to order ZEC to
release the Presidential results.” (my emphasis)
It is the applicant’s case that s 182(1), being unconstitutional, was not a “law”
that would justify or constitute a permissible derogation from ss 20 (1), 21 (1) and 23 (2) of
the old Constitution. He further contends that his prosecution in the Magistrates Court
constituted a violation of his right to equal protection of the law as provided for under s 18