Open Society Africa Programmes Director says Zimbabwe's 'Patriotic Act' is invalid ab initio

Zimbabwean human rights lawyer Siphosami Malunga says the new "Patriotic Act" - which basically is an amendment of the Criminal Law (Codification and Reform) Act - signed into law by President Emmerson Mnangagwa yesterday is invalid ab initio as it violates critical constitutional principles: The doctrines of vagueness and overbreadth.

Malunga, who is Open Society Africa Programmes Director and who has worked around the world on human rights issues, says the principles of legality state that laws must be sufficiently clear and precise.

The doctrines of vagueness and overbreadth are closely related; they are rooted in the principles of clarity and precision.

The Criminal Law Codification and Reform Amendment Act, criminalises anyone caught "wilfully injuring the sovereignty and national interest of Zimbabwe" and those who participate in meetings with the intention of promoting calls for economic sanctions against the country.

Malunga says the new Act, for example the wording "wilfully injuring the sovereignty and national interest of Zimbabwe", is vague and overbroad, hence invalid.

The common principle behind vagueness and overbreadth is that laws must have a minimum degree of certainty for people to know clearly and precisely what is legal and not.

According to the principles of legality, if a law is vague, or overbroad, respectively, it is not a valid law.

A law must be clear enough to be understood and must also be precise enough that it only applies to activities connected to its purpose.

The void for vagueness doctrine requires that laws must be so written that they explicitly and definitely state what conduct is punishable.

Overbreadth, shorthand for the overbreadth doctrine, provides that laws regulating speech can sweep too broadly and prohibit fundamental rights.

Regulation of freedom of speech or expression, for instance, is unconstitutionally overbroad if it infringes on key protected or entrenched rights.

Said Malunga:

"The Patriotic Act of Zimbabwe violates two key constitutional principles: First, the Void-for-Vagueness Principle which requires that terms of a penal statute must be sufficiently explicit to inform citizens what conduct on their part will render them liable to its penalties.

"It also violates the Void-For-Overbreadth Principle. In other words it is overbroad. A penal statue is unconstitutional if its language is so broad that it unnecessarily interferes with the exercise of constitutional rights."