What became of Zimbabwe's Patriotic Bill?

THE Zimbabwe government has made several attempts to close down the civic space in Zimbabwe through existing and new legislation. This includes some amendments to the Criminal Law Codification and Reform Act that are in the Cyber and Data Protection Act and also the proposed Private Voluntary Organisations Amendment Bill.

In 2020, following the Zimbabwean Lives Matter Campaign, which campaign was highlighting cases of human rights violations in Zimbabwe, discussions were also kick started around a Patriotic Bill which however never saw the light of day. This Bill was aimed at criminalising citizen engagement or correspondence with ‘foreign agents' except by state officials and also to criminalise what was termed campaigning against one's own country.

Another issue which seems to be contributing to the development of such law, is the issue of sanctions imposed against Zimbabwe and the alleged involvement of some citizens and political leaders in lobbying the United States of America to impose such unilateral measures.

While it might seem like the idea has since been abandoned, it should be noted that processes are underway to present these principles as an amendment to the Criminal Law Codification and Reform Act.

The Ministry of Justice, Legal and Parliamentary Affairs on the 16th of November 2021, made submissions to the Parliamentary Portfolio Committee on Foreign Affairs and International Trade on the status of the principles of the proposals to regulate Zimbabwean citizens' engagement with foreign governments.

In a virtual presentation to the Committee, the Ministry's Law Officer – Policy and Legal Research Department, Patience Dhokwani, noted that the principles which are set to amend the Criminal Law (Codification and Reform) Act were approved by Cabinet and were now with the drafters. The government seems to also be indicating that the law is an attempt to promote Zimbabwe's foreign policy position as enunciated in the Constitution of Zimbabwe.

What is clear however, from the government communication since 2020 is that the proposed amendment is an attempt to muzzle free expression by Zimbabwean citizens. As an example, very recently, local journalist Hopewell Chin'ono presented at a Summit for Human Rights and Democracy in Geneva Switzerland on the human rights situation in Zimbabwe.

Following his presentation, several political leaders and government officials including the Permanent Secretary for the Ministry of Information, Publicity and Broadcasting Services, Nick Mangwana , expressed their disapproval of his presentation and further highlighted why from the government's perspective a ‘patriotic law' is important.

In the words of Nick Mangwana on Twitter,

"Everyone has a duty not to be disloyal to their country. Trashing your own country for the pleasure of foreigners is the epitome of that disloyalty".

The above sentiments and others shared by several other public officials supporting a law that criminalises unpatriotic acts, indicate that the position of this law wil be that, speaking of circumstances that do not paint the country in good light should be a criminal offence, it is a sign of disloyalty and is unpatriotic.

Reference can be made to an earlier motion by the late Honorable Mpofu in Parliament on the 2nd of March 2021, wherein he highlighted the following,

"That this House:

COGNISANT that Zimbabwe's image and national reputation are critical factors in attracting foreign investment;

CONCERNED that the negative portrayal of the country's image and reputation has an adverse and crippling impact on the country's economic prospects especially on tourism, investment, and the welfare of the vulnerable such as youths, women and the disabled;

ENCOURAGED that other jurisdictions, recognising the need to preserve their image and soft power in a competitive global village, have enacted laws that bar their citizens from engaging in unpatriotic activities and communication intended to denigrate the integrity of their homeland;

BUOYED by the fact that the overwhelming majority of Zimbabweans are focused on building the positive image of the country as a reforming, open, peaceful, and democratic country that is attractive to investment;

NOW THEREFORE, call upon this august House to enact a law that:

1    a)recognises and celebrates efforts made by Zimbabwean citizens at home and abroad to promote the country's positive image and brand; and

2    b)prohibits any Zimbabwean citizen from wilfully communicating messages intended to harm the image and reputation of the country on international platforms or engaging with foreign countries with the intention of communicating messages intended to harm the country's positive image and/or to under its integrity and reputation."

It is therefore clear that instead of addressing the concerns of citizens and their cry for help, towards addressing areas of concern, the government is more concerned in creating a good picture and a positive image on the experiences of its citizens. This also explains the engagement by Zimbabwe, of a foreign company 2019 to lobby the US government to remove sanctions as was reported through the media. Such companies would potentially be the authorised persons to whom the law will be referring to, that can speak on behalf of the government.

Further, this law is purportedly informed by the Logan Act, a United States Law that was enacted in 1799 to criminalise negotiations by unauthorised citizens with foreign governments having a dispute with the United States. This law is archaic and the question of its constitutionality has also been on the table, including that it infringes on free expression.

Be that as it may be, what is clear from the founding values of the Logan Act is that, the person to be found guilty should purport to be engaging on behalf of the government and secondly, it should be an engagement relating to an ongoing dispute between the countries.

This would therefore not include engagement that is not on behalf of the government and an engagement on an issue that is not a subject to an ongoing dispute.

Further, this law did not take away the right of a citizen or his or her agent abridge the right of a citizen to apply to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

Should such a law come into being in Zimbabwe, it shall need to have a clear definition of what qualifies as foreign policy, who qualifies as a foreign agent and the nature of engagements that are purportedly prohibited. This will ensure that humanitarian work can proceed and also that citizens can exercise their freedom of expression and association without any unjustifiable infringement or any fear.

It should further be noted that the government is attempting to entrench a narrow approach to foreign policy by restricting any engagements that influence such policies to be only state by state engagements. There are several players that influence foreign policies and rightly so under international law and foreign policy and these include Organisation for Economic Cooperation and Development, World Bank, World Economic Forum among other players.

Volker Stanzel notes that technical developments, mainly digitization, affect how the work of the diplomat is understood; the number of domestic and international actors whose activity implicates (or is a form of) diplomacy is increasing; the public is more sensitive to foreign policy issues and seeks to influence diplomacy through social media and other platforms.

This shows that the public also has a role to play in influencing how Zimbabwe is portrayed internationally. The nature of the public influence will only be informed by the realities on the ground.

This is no way condones the spread of propaganda material or any disinformation. Should any such cases arise, there already is sufficient laws to address that including Section 31 of the Criminal Law Codification and Reform Act and Section 164C as amended through the Data Protection Act, both provisions which criminalise the publication of falsehoods. (False news offences were also declared unconstitutional in the case of Chimakure and Others v Attorney General of Zimbabwe SC14-13 particularly Section 31(a)(iii) and declared to be an unjustifiable infringement to the right to free expression. However, this provision continues to be enforced and has since been resuscitated through the Cyber and Data Protection Act amendment to the Criminal Law (Codification and Reform Act))

The principles behind the proposed amendments however, are flying in the face of democracy, accountability and also the constitutional provision on freedom of expression and freedom of association. Citizens should be allowed to speak of their opinions, on their experiences or the experiences of their fellow countrymen even if such opinions or views are not to the liking of the government or the ruling party.

Freedom of expression includes the right to impart to every citizen to impart information and its interrelationship with media freedom includes that state media should provide coverage of diverse and dissenting opinions. This law will muzzle citizens and entrench self-censorship and thus leaving the government to do as it pleases without any oversight by the citizens or an opportunity for them to use both local and international advocacy to promote accountability.

Similarly freedom of association should not be criminalised including association of citizens with foreign agents at different levels including embassies and also international platforms.

Such law will also cripple and or criminalise non-governmental organisations' work which is centred on human rights advocacy. Such advocacy work includes documentation, profiling and exposing human rights violations in Zimbabwe. Such advocacy would naturally include engaging foreign partners, speaking at regional and international platforms and also engaging embassies as well.

Going forward, it is critical for the government of Zimbabwe to make deliberate efforts at addressing the concerns of citizens, putting in place mechanisms for more transparency and accountability instead of attempting to silence citizens.

Of note is the position that speaking out and speaking up against human rights violations, corruption or any issues of public interest is not and should not be deemed to be unpatriotic or disloyalty to Zimbabwe.

Nompilo Simanje is a tech law and policy expert focusing particularly on promoting privacy, free expression and access to information

Otto Saki is a lawyer with global expertise in human rights and governance