Opinion / Columnist
Confronting the scourge of persecution by prosecution
17 Jan 2021 at 09:30hrs | Views
One of the most topical debates in national discourses in Zimbabwe over the last week has been around mechanisms to address and regulate the dissemination of false information and disinformation, in light of the arrests of journalist Hopewell Chin'ono and opposition political officials Job Sikhala and Fadzayi Mahere.
The trio's alleged crime was that of publishing a falsehood or communicating false information prejudicial to the state.
This purported offence is drawn from Section 31 (a) (iii) of the Criminal (Codification and Reform) Act, a part of the law which in all intents and purpose doesn't only no longer exists in our statutes by virtue of a Constitutional Court ruling, but is also not in sync with the government's law reform agenda that has, among other developments, repealed repressive legislation such as the Access to Information and Protection of Privacy Act (Aippa).
There have been several articulate submissions around the illegality of the law used to arrest the trio, centered on the precedence set by the Constitutional Court in the ruling against criminal defamation and indeed the principle that no law, including the constitution, which is the supreme law can resurrect statutes that no longer exists.
One doesn't need to be a lawyer or constitutional expert to appreciate that even if provisions of a repealed law are in sync with the new law, those former statutes don't automatically become effective unless and until the provisions are enacted through the recognised law-making processes.
The arguments, therefore, that the law was resurrected by way of the general amendments are illegitimate.
To use the repealed Access to Information and Protection of Privacy Act (Aippa) as an example, a general amendment of the title of an officer of say the Zimbabwe Media Commission (ZMC) for all statutes cannot in any way suggest that the repealed law has been reinstated and is effective.
It is an unsustainable argument that only suggests a leopard doesn't change its spots and the regime of the so-called second republic is not any different from the first.
Beyond the submissions on the illegality of the law and therefore arrests, there have been suggestions that the trio had a case to answer before the country's judiciary as a way of holding peddlers of false information and misinformation accountable.
To put things into context, the trio recirculated a video that went viral on social media in which a police officer is seen quarrelling amid pushing and shoving among a group of people that audibly accused this police officer of striking and killing a baby with a baton stick.
In the same visuals, an actively involved woman holding a baby - who at that time was reported to be the mother of the "dead" baby - is also seen grabbing the policeman.
Chin'ono who uses his social media handles as a source for verified and legitimate news and information, being an internationally acclaimed journalist, posted the video, disapproving of the wanton act of violence that the citizens in the video were audibly complaining of and in the process reported the case of the child having been "killed" as fact.
Sikhala and Mahere, who by virtue of being in the opposition posit themselves as alternative leaders raised concern at the treatment of citizens by the police, more so that the violence against citizens had led to the "death" of an innocent child.
Thousands of social media users within and outside Zimbabwe also weighed in the condemnation with the narrative that there had been a baby that had lost their life on account of a brutal police force trending.
Zimbabwe would need to build new prisons if the country were to accommodate those that could have been arrested on the same account as the three high profile figures incarcerated for commenting and recirculating a trending video and subsequent narrative.
To their credit, police in response to the trending video, initiated an inquiry into what had obtained with their investigations, revealing that there had been a scuffle between a police officer and members of the public after the officer in question had shattered a windscreen of a commuter omnibus with a baton, resulting in the baby being hit by debris.
However, and perhaps a critical fact according to the police investigation, the baby did not die as those in the video suggested and as the trio and many others widely circulated.
The police's role should have started and ended there.
To then go on and make an arrest, not on account of the investigation but to punish those that had circulated the information that gave you the lead, is not only unfair but outrageous.
What made the police investigation, report and subsequent action even more interesting is how the narrative of the mother of the baby in a later interview with the Zimbabwe Broadcasting Corporation Television (ZBC TV) differs from the police statement.
The consistent fact revolved around that the baby is alive and well, which seems to be the state's main contention.
It is given that the police report and account by the mother, social media users, including the trio circulated information that was not entirely true.
It is also given that in this digital age, misinformation and fake information is a challenge that will need multifaceted interventions to address.
Arresting citizens, dissenting voices and opposition leaders is certainly not one of the ways to curd disinformation.
The state cannot purport to hold and monitor the truth.
It is tantamount to criminalising freedom of expression and it is an unsustainable way of regulating or promoting ethical practices on the internet when it comes to the dissemination of news and information.
As highlighted earlier, it was going to be impractical for the state to prosecute all those that recirculated, commented or reacted to the video that missed critical facts.
It is actually telling in the persons that were arrested that this was actual fact targeted at journalists and activists.
This is not to say, especially from a journalistic perspective that the media cannot be held accountable.
It is to this end that the Media Alliance of Zimbabwe (MAZ) and its partners, among them the press council, journalists' union, editors' forum and the Media Institute of Southern Africa (Misa Zimbabwe), are consulting on a Media Practitioners law that read together with the soon-to-be-enacted Zimbabwe Media Commission Bill will provide a framework for coregulation of the media premised on a binding code of conduct.
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Nigel Nyamutumbu is a media development practitioner currently serving as the programmes manager for the Media Alliance of Zimbabwe (MAZ). He can be contacted on +263 772 501 557 or email njnya2@gmail.com
The trio's alleged crime was that of publishing a falsehood or communicating false information prejudicial to the state.
This purported offence is drawn from Section 31 (a) (iii) of the Criminal (Codification and Reform) Act, a part of the law which in all intents and purpose doesn't only no longer exists in our statutes by virtue of a Constitutional Court ruling, but is also not in sync with the government's law reform agenda that has, among other developments, repealed repressive legislation such as the Access to Information and Protection of Privacy Act (Aippa).
There have been several articulate submissions around the illegality of the law used to arrest the trio, centered on the precedence set by the Constitutional Court in the ruling against criminal defamation and indeed the principle that no law, including the constitution, which is the supreme law can resurrect statutes that no longer exists.
One doesn't need to be a lawyer or constitutional expert to appreciate that even if provisions of a repealed law are in sync with the new law, those former statutes don't automatically become effective unless and until the provisions are enacted through the recognised law-making processes.
The arguments, therefore, that the law was resurrected by way of the general amendments are illegitimate.
To use the repealed Access to Information and Protection of Privacy Act (Aippa) as an example, a general amendment of the title of an officer of say the Zimbabwe Media Commission (ZMC) for all statutes cannot in any way suggest that the repealed law has been reinstated and is effective.
It is an unsustainable argument that only suggests a leopard doesn't change its spots and the regime of the so-called second republic is not any different from the first.
Beyond the submissions on the illegality of the law and therefore arrests, there have been suggestions that the trio had a case to answer before the country's judiciary as a way of holding peddlers of false information and misinformation accountable.
To put things into context, the trio recirculated a video that went viral on social media in which a police officer is seen quarrelling amid pushing and shoving among a group of people that audibly accused this police officer of striking and killing a baby with a baton stick.
In the same visuals, an actively involved woman holding a baby - who at that time was reported to be the mother of the "dead" baby - is also seen grabbing the policeman.
Chin'ono who uses his social media handles as a source for verified and legitimate news and information, being an internationally acclaimed journalist, posted the video, disapproving of the wanton act of violence that the citizens in the video were audibly complaining of and in the process reported the case of the child having been "killed" as fact.
Sikhala and Mahere, who by virtue of being in the opposition posit themselves as alternative leaders raised concern at the treatment of citizens by the police, more so that the violence against citizens had led to the "death" of an innocent child.
Thousands of social media users within and outside Zimbabwe also weighed in the condemnation with the narrative that there had been a baby that had lost their life on account of a brutal police force trending.
Zimbabwe would need to build new prisons if the country were to accommodate those that could have been arrested on the same account as the three high profile figures incarcerated for commenting and recirculating a trending video and subsequent narrative.
To their credit, police in response to the trending video, initiated an inquiry into what had obtained with their investigations, revealing that there had been a scuffle between a police officer and members of the public after the officer in question had shattered a windscreen of a commuter omnibus with a baton, resulting in the baby being hit by debris.
However, and perhaps a critical fact according to the police investigation, the baby did not die as those in the video suggested and as the trio and many others widely circulated.
The police's role should have started and ended there.
To then go on and make an arrest, not on account of the investigation but to punish those that had circulated the information that gave you the lead, is not only unfair but outrageous.
What made the police investigation, report and subsequent action even more interesting is how the narrative of the mother of the baby in a later interview with the Zimbabwe Broadcasting Corporation Television (ZBC TV) differs from the police statement.
The consistent fact revolved around that the baby is alive and well, which seems to be the state's main contention.
It is given that the police report and account by the mother, social media users, including the trio circulated information that was not entirely true.
It is also given that in this digital age, misinformation and fake information is a challenge that will need multifaceted interventions to address.
Arresting citizens, dissenting voices and opposition leaders is certainly not one of the ways to curd disinformation.
The state cannot purport to hold and monitor the truth.
It is tantamount to criminalising freedom of expression and it is an unsustainable way of regulating or promoting ethical practices on the internet when it comes to the dissemination of news and information.
As highlighted earlier, it was going to be impractical for the state to prosecute all those that recirculated, commented or reacted to the video that missed critical facts.
It is actually telling in the persons that were arrested that this was actual fact targeted at journalists and activists.
This is not to say, especially from a journalistic perspective that the media cannot be held accountable.
It is to this end that the Media Alliance of Zimbabwe (MAZ) and its partners, among them the press council, journalists' union, editors' forum and the Media Institute of Southern Africa (Misa Zimbabwe), are consulting on a Media Practitioners law that read together with the soon-to-be-enacted Zimbabwe Media Commission Bill will provide a framework for coregulation of the media premised on a binding code of conduct.
-----
Nigel Nyamutumbu is a media development practitioner currently serving as the programmes manager for the Media Alliance of Zimbabwe (MAZ). He can be contacted on +263 772 501 557 or email njnya2@gmail.com
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