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Clarification about the Criminal Law (Codification And Reform) Bill [H.B. 10, 2003]
Veritas
Extracted from BILLWATCH 42 of 5.12.2004
December 05, 2004

Read the Parliamentary Legal Committee's adverse report on the Criminal Law [Codification and Reform] Bill

Clauses 31 and 33 of this Bill do not introduce new crimes. They have replaced Sections 15 and 16 of the Public Order and Security Act [POSA]. Those sections of POSA replaced by clauses in this Bill will be repealed. [See extracts from these clauses of the Bill and from POSA below]

Clause 31 of the Criminal Law [Codification and Reform] Bill - Publishing or communicating false statements prejudicial to the State is an almost word for word replacement of Section 15 of POSA. There are slight differences in paragraphing and there is a more severe level of punishment.

Clause 33 of the Criminal Law [Codification and Reform] Bill - Undermining authority of or insulting President is an almost word for word replacement of Section 16 of POSA.

The Criminal Law [Codification and Reform] Bill seeks to "codify" that part of the common law of Zimbabwe, which concerns non-statutory crimes [for instance treason, murder, culpable homicide, theft, fraud, assault, arson, malicious injury to property, criminal defamation, etc]. In addition many existing statutory crimes will be incorporated. [This will include the whole of the Sexual Offences Act, the whole of the Witchcraft Suppression Act, sections of the Dangerous Drugs Act, sections of POSA, etc.] The inclusion of these crimes will involve either the repeal or the amendment of the Acts concerned. Note that other sections from POSA are also being replaced in this Bill.

The Criminal Law [Codification and Reform] Bill had an adverse report from the Parliamentary Legal Committee [PLC]. The adverse report had noted that Clause 33 violated sections of the Constitution.

Parliament voted to reject the PLC report. The Bill then passed through its Second Reading and Committee stages and amendments were made and referred back to the PLC. The PLC has to report back to Parliament before the Bill can proceed to its third reading - which is a formality before it is passed.

The codification of Criminal Law is an extremely important and major piece of legislation. It could have provided the opportunity of informed public debate about a major section of the law governing the lives of the people. As the Bill was being fast tracked [contrary to Parliament's own adopted reforms]
the Bill was not referred to Parliamentary Portfolio Committees. Parliament did not call for public hearings or for evidence and inputs from sectoral representatives of society. The House ignored the advice of its own legal committee on the Bill's constitutionality and MP's had little time to debate such a complex and lengthy piece of legislation.


Criminal Law [Codification] & POSA Extracts

CRIMINAL LAW [CODIFICATION & REFORM] BILL CLAUSE 31

PUBLIC ORDER AND SECURITY ACT [CHAPTER 11:17] SECTION 15

31 Publishing or communicating false statements prejudicial to the State

Any person who, whether inside or outside Zimbabwe—

(a) publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of—

(i) inciting or promoting public disorder or public violence or endangering public safety; or

(ii) adversely affecting the defence or economic interests of Zimbabwe; or

(iii) undermining public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe; or

(iv) interfering with, disrupting or interrupting any essential service;

shall, whether or not the publication or communication results in a consequence referred to in subparagraph (i), (ii), (iii) or (iv);

or

 


(b) with or without the intention or realisation referred to in paragraph (a), publishes or communicates to any other person a statement which is wholly or materially false and which—

(i) he or she knows to be false; or (ii) he or she does not have reasonable grounds for believing to be true;

shall, if the publication or communication of the statement—

A. promotes public disorder or public violence or endangers public safety; or

B. adversely affects the defence or economic interests of Zimbabwe; or

C. undermines public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe; or

D. interferes with, disrupts or interrupts any essential service;




be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding twenty years or both.

 

15 Publishing or communicating false statements prejudicial to the State

(1)  Any person who, whether inside or outside Zimbabwe,

publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a risk or possibility of—

(a) inciting or promoting public disorder or public violence or endangering public safety; or

(b) adversely affecting the defence or economic interests of Zimbabwe; or

(c) undermining public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe; or

(d) interfering with, disrupting or interrupting any essential service;

shall, whether or not the publication or communication results in a consequence referred to in paragraph (a), (b), (c) or (d), be guilty of an offence and liable to a fine not exceeding one hundred thousand dollars or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

(2)  Any person who, whether inside or outside Zimbabwe and whether with or without the intention or realisation referred to in subsection (1), publishes or communicates to any other person a statement which is wholly or materially false and which—

(a) he knows to be false; or

(b) he does not have reasonable grounds for believing to be true;

shall, if the publication or communication of the statement—

(i) promotes or incites public disorder or public violence or endangers public safety; or

(ii) adversely affects the defence or economic interests of Zimbabwe; or

(iii) undermines public confidence in a law enforcement agency, the Prison Service or the Defence Forces of Zimbabwe; or

(iv) interferes with, disrupts or interrupts any essential service;

be guilty of an offence and liable to a fine not exceeding one hundred thousand dollars or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

 CRIMINAL LAW [CODIFICATION & REFORM] BILL CLAUSE 3
PUBLIC ORDER AND SECURITY ACT [CHAPTER 11:17] SECTION 16

33 Undermining authority of or insulting President

(1)  In this section—

"publicly", in relation to making a statement, means—

(a) making the statement in a public place or any place to which the public or any section of the public have access;

(b) publishing it in any printed or electronic medium for reception by the public;

"statement" includes any act or gesture.

(2)  Any person who publicly, unlawfully and intentionally—

(a) makes any statement about or concerning the President or an acting President with the knowledge or realising that there is a real risk or possibility that the statement is false and that it may—

(i) engender feelings of hostility towards; or

(ii) cause hatred, contempt or ridicule of;

the President or an acting President, whether in person or in respect of the President’s office; or

(b) makes any abusive, indecent or obscene statement about or concerning the President or an acting President, whether in respect of the President personally or the President’s office;

shall be guilty of undermining the authority of or insulting the President and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

16 Undermining authority of or insulting President

(1)  In this section—

"publicly", in relation to making a statement, means—

(a) making the statement in a public place or any place to which the public or any section of the public have access;

(b) publishing it in any printed or electronic medium for reception by the public;

"statement" includes any act or gesture.

(2)  Any person who publicly and intentionally—

(a) makes any false statement about or concerning the President or an acting President knowing or realising that there is a risk or possibility of—

(i) engendering feelings of hostility towards; or

(ii) causing hatred, contempt or ridicule of;

the President or an acting President, whether in person or in respect of his office; or

(b) makes any abusive, indecent, obscene or false statement about or concerning the President or an acting President, whether in respect of his person or his office;

shall be guilty of an offence and liable to a fine not exceeding twenty thousand dollars or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

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