THE arrest of journalist Blessed Mhlanga under Section 136 of the Criminal Law (Codification and Reform) Act highlights Zimbabwe’s ongoing suppression of freedom of expression.
Mhlanga was charged for disseminating an interview in which a war veteran expressed his views on the country’s political situation and the President.
The State alleges that he transmitted content harmful to the nation with intent to incite violence.
However, there is no evidence of unlawfulness or intent to incite public disorder.
Section 136, which criminalises the online transmission of certain messages, is vague and prone to abuse.
Past legal rulings, including Chavunduka & Anor v Minister of Home Affairs & Anor (2000 (1) ZLR 552 (S)), underscore the principle that laws restricting speech must be precise, necessary, and proportionate.
The government’s reliance on this provision to silence journalists is unconstitutional and violates the right to freedom of expression enshrined in Section 61 of the Constitution of Zimbabwe.
The constitutional standard for freedom of expression
Section 61(1) of the Constitution guarantees freedom of expression, including the right to seek, receive and communicate ideas.
This right is fundamental to democracy, ensuring journalists, activists, and citizens can voice their opinions without fear of arbitrary punishment.
While not absolute, any limitation must be reasonable, necessary, and proportionate.
Section 136 does not meet this standard.
Section 136 of the Criminal Law (Codification and Reform) Act: A legal analysis
Section 136 criminalises the unlawful transmission of data messages intended to incite violence or cause property damage.
The provision states: “Any person who unlawfully by means of a computer or information system makes available, transmits, broadcasts or distributes a data message to any person, group of persons or to the public with intent to incite any person to commit acts of violence against any person or to cause damage to any property shall be guilty of an offence and liable to a fine not exceeding Level 10 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.”
This provision is problematic due to its vagueness and over-breadth.
A fundamental principle of constitutional law is that criminal statutes must be clear and precise, enabling individuals to regulate their conduct accordingly.
Section 136 lacks specificity in defining “unlawful transmission” and “intent to incite violence”.
It does not require actual proof of incitement or harm, meaning one can be convicted based on speculation rather than tangible evidence.
The Chavunduka case and its relevance
In Chavunduka & Anor v Minister of Home Affairs & Anor, journalists Mark Chavunduka and Ray Choto were arrested for publishing a report on an alleged military coup.
The Supreme Court, per Gubbay CJ, ruled that laws criminalising statements likely to cause fear, alarm, or despondency were unconstitutional due to vagueness and overbreadth.
Gubbay CJ held that laws must be precise and accessible to prevent arbitrary enforcement.
A statute that criminalises speech without clearly defining prohibited conduct grants excessive discretion to authorities, violating the rule of law.
The judgment warned that vague laws deter free speech, particularly criticism of the government.
Section 136, like the provision invalidated in Chavunduka, allows the government to prosecute individuals for statements it finds undesirable rather than those posing a real threat.
Similarly, in State v Mawarire (HH 802/17), the High Court upheld the right to criticise the government, ruling that expressing opinions does not constitute incitement unless there is a direct call to violence.
Mere publication of an interview cannot be deemed incitement.
Section 136 as a tool for political suppression
Mhlanga’s case illustrates how Section 136 is weaponised against journalists.
The war veteran merely expressed his views, a right protected under Section 61 of the Constitution.
There is no factual basis for alleging incitement.
The government’s subjective determination of what is “harmful to the State” is being used to suppress dissenting voices.
This pattern of repression is evident in cases such as Madanhire & Another v Attorney General (2010 ZLR 30 (S)), where the Supreme Court reaffirmed that criminal defamation laws restricting journalistic work violate constitutional protections.
Similarly, in The People v Unger (2011 ZACC 17), the South African Constitutional Court ruled that laws criminalising speech must be narrowly tailored to prevent unnecessary infringement on freedom of expression.
The International Covenant on Civil and Political Rights (ICCPR), to which Zimbabwe is a signatory, guarantees freedom of expression under Article 19.
The African Charter on Human and Peoples’ Rights (ACHPR) similarly protects this right under Article 9.
These international instruments place an obligation on Zimbabwe to ensure that any restrictions on speech are necessary, proportional, and in line with democratic principles.
Section 136 does not adhere to these standards, further highlighting its illegitimacy.
The unconstitutionality of Section 136
Given the above, Section 136 should be declared unconstitutional on the grounds of vagueness and overbreadth.
The term “unlawfully transmits” is undefined, leading to arbitrary enforcement.
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The provision does not clarify what constitutes intent to incite violence, making it susceptible to abuse.
The law does not require actual incitement or harm, violating the principle of legality in criminal law.
Journalists and activists self-censor to avoid prosecution, weakening democratic discourse.
The provision is selectively applied against critics, rather than being a legitimate tool for public security.
If genuinely aimed at preventing violence, the law should require clear evidence of intent and actual incitement, which it does not.
Conclusion and recommendations
The arrest of Mhlanga under Section 136 is a blatant violation of freedom of expression.
The provision is too vague, broad, and unconstitutional, allowing arbitrary enforcement without proof of incitement.
As established in Chavunduka, vague laws that criminalise speech based on speculation are unconstitutional.
Zimbabwe’s government continues to misuse such laws to suppress dissent, undermining democracy and eroding constitutional rights.
Section 136 should be challenged in court for unconstitutionality.
Parliament must amend or repeal provisions that unduly restrict freedom of expression.
Stronger legal protections should be instituted to prevent arbitrary arrests.
Human rights bodies should pressure the Zimbabwean government to uphold freedom of expression.
Until reforms are enacted, laws like Section 136 will continue to serve as tools of oppression rather than safeguards against public disorder.
The arrest of Mhlanga is not an attack on one journalist — it is an attack on democracy itself. – NewsDay
