This post was originally posted as a status on Fadzayi Mahere’s facebook and is republished here with her consent
In terms of section 61(1) of the Constitution of Zimbabwe, every person has the right to freedom of expression which includes the freedom to seek, receive and communicate ideas and other information.
Exceptions to this fundamental right are provided for under 61(5) of the Constitution which provides that freedom expression does not cover incitement to violence, hate speech, malicious injury to a person’s dignity or breach of privacy. It follows that to the extent that one operates outside these limitations, one is acting within the bounds of one’s right to freedom of expression.
Additionally, in terms of section 62(2) of the Constitution every person has the right to access information (including via whatsapp) held by any person in so far as the information is required for the exercise or protection of a right. Crucially, section 59 of the Constitution enshrines the right to demonstrate and petition peacefully. Section 67(2)(b) of the Constitution guarantees the right to campaign freely and peacefully for a cause.
It follows from a reading of these provisions that so long as you require any information that does not incite violence, advocate hate speech or maliciously injure a person’s reputation, dignity or privacy for the furtherance of any of these rights, you have the right to seek, receive and communicate such information or ideas using whatsapp or whatever medium is preferred in this regard.
It cannot be over-emphasized that in addition to all this, one has the right under section 57(d) of the Constitution not to have the privacy of their communications including whatsapp and other social media messages infringed.
No law to my knowledge criminalises a non-violent stay away from work. Laws are also not promulgated by way of a ‘public notice’. Parliament enacts legislation and sometimes delegates this power to an administrative authority that must gazette in accordance with the law a statutory instrument for this purpose. A ‘public notice’ does not have the force of law.
I am therefore of the respectful view that circulating information via WhatsApp or any medium calling for a non-violent shutdown or stay away from work is accordingly well within one’s Constitutional rights as highlighted above. Such a call to a non-violent stay away would also not breach section 88 of the Postal and Telecommunications Act which criminalises the sending (not possessing or generating) by telephone (debatable whether a cellphone is the same as a telephone for the purposes of the Act) of grossly offensive, indecent, obscene, false or threatening messages. It must be highlighted that no administrative authority has the power to ‘deem’ a message to be threatening or otherwise improper. Only a court of law has the power to do this. ‘Causing despondency’ is not a term or phrase governed by statute and it is not a criminal offence under the Criminal Code or any other law.
It bears no mention that in terms of section 2 of the Constitution, the Constitution is the supreme law of Zimbabwe and any law, practice, custom, conduct or for that matter, ‘public notice’, that is inconsistent with it is invalid to the extent of that inconsistency.
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