STATUTES REQUIRING CONSTITUTIONAL ALIGNMENT __________________________________________________________________________________ The Act should be repealed and any regulations made under it should be re-enacted as Acts of Parliament. 15. Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04]* Section 4 of the Act states that Ministers can issue notices prohibiting parties in civil and criminal proceedings from passing information to each other. A Minister could therefore prohibit the prosecution in a criminal case from revealing information to the accused which might be vital for his defence. The section therefore violates the fairtrial provision contained in section 69 of the Constitution. 16. Criminal Law (Codification and Reform) Act [Chapter 9:23]* The Act is inconsistent with the Constitution in several respects: • Section 31, which criminalises making false statements prejudicial to the State, is over-broad and stifles freedom of expression. It must be reduced in scope. • Section 33 of this Act, which makes it a crime to insult the President, should either be repealed entirely or be amended so as to reduce its scope. An executive President is a politician and should be open to the same criticism and satire, whether fair or unfair, as all other politicians. • Section 47, which lays down what amount to aggravating circumstances justifying the imposition of the death penalty for murder, unduly limits the discretion of the High Court. This is contrary to the rule of law and the right to a fair trial (section 69 of the Constitution). • Section 81, on soliciting, needs to be amended to prevent selective and discriminatory application against women for loitering, and to ensure it is not applied so as to restrict the free movement of women. • Section 114, which lays down a mandatory minimum penalty of nine years’ imprisonment for stock theft, offends against the right to a fair trial guaranteed by section 69 of the Constitution, in that the sentence is disproportionate to the offence. 17. Criminal Procedure and Evidence Act [Chapter 9:07]* The Act must be amended to bring it in line with sections 50, 69 and 70 of the Constitution. The urgency of this cannot be over-emphasised; the fairness of criminal trials that are now taking place must be judged against the Declaration of Rights in the Constitution, not against the law as it used to be. In particular, the following provisions of the Criminal Procedure and Evidence Act are unconstitutional: • Section 32, which allows arrested persons to be detained for longer than 48 hours either because the 48-hour period expires on a non-court day or because a justice of the peace has issued a warrant for their further detention. Under the new constitution only a court can extend the period beyond 48 hours. • Section 42(2), which allows persons to be killed if they try to escape from a lawful arrest. The right to life under section 48 of the Constitution cannot be limited by any law (section 86(3)(a) of the Constitution). 6