A Lockdown arrest for publishing “fake” news: Legal Ramifications and a case of Human Rights Abuse.
May 2020
Courteney T Mukoyi
There is a widely circulated Charge Sheet of a man arrested for publishing “fake” news about Lockdown Extension. The man is being accused of “publishing or communicating a false statement prejudicial to the state” in terms of Section 31 of the Criminal Law Code. One does not need to be a legal puritan to notice that the charge points to a fishing expedition by the State, which we all hope that will lead to a catch of frogs. A reading of both the facts and the law also shows that either the facts or the law or both suffer from lack of focus and particularity.
The Charge Sheet states that the accused person (Lovemore) published a Press Statement document purported to be issued and signed by President Emmerson Mnangagwa headlined “ EXTENSION OF LOCKDOWN PERIOD BY 13 DAYS ONLY”. The accused person is said to have disseminated the false press statement on different Whatsapp platforms. It further mentions the mobile number the accused is allegedly said to have used in disseminating the information and the model of his phone as well as its serial number.
Publication or communication of the statement to another.
As alleged by the State, the accused published or communicated the statement to another by disseminating it on different Whatsapp platforms, something which, apparently, quite a number of people did. This means that it is not necessary to prove that accused authored the press statement but the fact that he passed it on or forwarded it, is sufficient. It even prohibits passing on such information privately between for instance husband and wife. However, the act of passing the message alone is not sufficient to state that a person committed an offence.
That the statement was wholly or materially false.
This requirement means that the statement does not need to be entirely false. A person can be found guilty on this basis even if they forwarded the message believing it to be true. This places the responsibility of the person who originally fabricated a false statement on the person who has just passed it on. It is made with the assumption that one must verify authenticity of information before passing it on, which sound quite reasonable but ignores the fact that in this digital age, information changes fast.
However, the approach of the courts in Zimbabwe and worldwide is quite different but commendable. The Supreme Court in S v Chimakure & Others analysed this section in light of freedom of expression and stated that freedom of expression covers every activity which attempts to convey a message in a non-violent form. Publication or communication of a false statement to any other person in a non-violent form is protected under freedom of expression. In other words, truth is not a condition sine qua non of the protection of freedom of expression. The Supreme Court went on to state that lies are not necessarily without intrinsic social value in fostering individual self-fulfilment and discovering of truth.
The fact that a person has told lies to others on any subject matter should not be of concern to the state. Government is prohibited from appointing itself as a monitor of truth for people. Therefore, whether the statement was true or false does not matter. The accused was within his rights to forward the statement.
Besides, the statement was not false after all. It turns out that the President, later on, extended the lockdown with exactly 13 days as had been suggested by the widely circulated press statement. In actual fact, it was prudent that the statement had been published timeously rather than at the eleventh hour so that people are better prepared for an extension of the lockdown.
The Law.
Intention to or Realisation of real risk that the statement will incite or promote public disorder or public violence or endanger public safety.
Real risk or possibility is a test to be used to establish a subjective state of mind accompanying the publication of a false statement. It requires that accused must have reasonably foreseen the incitement or promotion of public violence or disorder or endangering of public safety. Therefore there has to be a nexus between the publication of the message and the incitement and promotion of public violence or danger to public safety. As noted above, the state does not need to prove these. What matters is that one has published or communicated the message. It is for this reason that the provision is vague, nebulous and embarrassing.
Is it reasonably necessary and justified in a democratic society?
Freedom of expression comes along with certain limitations. Where it serves to protect public interest, limitations are warranted. The offence is somewhat connected to this objective. In these perilous times where COVID-19 needs to be contained at all costs, public safety becomes of paramount importance. Countries worldwide have engaged in lockdown, with the W.H.O encouraging extension and other countries heeding the call so as to contain the spread. It seems to me that any message which encourages neighbours, friends, relatives, communities and even nations to stay at home is in the interest of public safety. To extend lockdown measures is certainly in the best interest of the public. To argue that a message passed on by a concerned citizen that lockdown is to be extended is contrary to public interest is to miss the point.
Section 31 poses problems in the sense that it does not specify that the statement should be intended to cause harm that will threaten public safety and order to a certain degree. Compared with section 36 of the same Act which spells out the offence of public violence and requires that accused acts…forcibly and to a serious extent to disturb peace and security or public order; it becomes easy to notice the vagueness of Section 31.
In the case of S v Chimakure and Others, the Supreme Court impliedly declared the provisions of Section 31 null and void for their inconsistency with the Constitution. To imagine even the punishment of up to 20 years imprisonment for an offence of this nature, shudders the mind.
Conclusion.
It seems to me that the government has another motive in bringing charges against the accused person on the basis of this section. The fact that the President later issued out a statement which confirmed the “false press statement” to be true, the message in itself is not a threat to public safety shows to me that the whole issue has been overtaken by events.
May 2020
Courteney T Mukoyi
There is a widely circulated Charge Sheet of a man arrested for publishing “fake” news about Lockdown Extension. The man is being accused of “publishing or communicating a false statement prejudicial to the state” in terms of Section 31 of the Criminal Law Code. One does not need to be a legal puritan to notice that the charge points to a fishing expedition by the State, which we all hope that will lead to a catch of frogs. A reading of both the facts and the law also shows that either the facts or the law or both suffer from lack of focus and particularity.
The Charge Sheet states that the accused person (Lovemore) published a Press Statement document purported to be issued and signed by President Emmerson Mnangagwa headlined “ EXTENSION OF LOCKDOWN PERIOD BY 13 DAYS ONLY”. The accused person is said to have disseminated the false press statement on different Whatsapp platforms. It further mentions the mobile number the accused is allegedly said to have used in disseminating the information and the model of his phone as well as its serial number.
Publication or communication of the statement to another.
As alleged by the State, the accused published or communicated the statement to another by disseminating it on different Whatsapp platforms, something which, apparently, quite a number of people did. This means that it is not necessary to prove that accused authored the press statement but the fact that he passed it on or forwarded it, is sufficient. It even prohibits passing on such information privately between for instance husband and wife. However, the act of passing the message alone is not sufficient to state that a person committed an offence.
That the statement was wholly or materially false.
This requirement means that the statement does not need to be entirely false. A person can be found guilty on this basis even if they forwarded the message believing it to be true. This places the responsibility of the person who originally fabricated a false statement on the person who has just passed it on. It is made with the assumption that one must verify authenticity of information before passing it on, which sound quite reasonable but ignores the fact that in this digital age, information changes fast.
However, the approach of the courts in Zimbabwe and worldwide is quite different but commendable. The Supreme Court in S v Chimakure & Others analysed this section in light of freedom of expression and stated that freedom of expression covers every activity which attempts to convey a message in a non-violent form. Publication or communication of a false statement to any other person in a non-violent form is protected under freedom of expression. In other words, truth is not a condition sine qua non of the protection of freedom of expression. The Supreme Court went on to state that lies are not necessarily without intrinsic social value in fostering individual self-fulfilment and discovering of truth.
The fact that a person has told lies to others on any subject matter should not be of concern to the state. Government is prohibited from appointing itself as a monitor of truth for people. Therefore, whether the statement was true or false does not matter. The accused was within his rights to forward the statement.
Besides, the statement was not false after all. It turns out that the President, later on, extended the lockdown with exactly 13 days as had been suggested by the widely circulated press statement. In actual fact, it was prudent that the statement had been published timeously rather than at the eleventh hour so that people are better prepared for an extension of the lockdown.
The Law.
Intention to or Realisation of real risk that the statement will incite or promote public disorder or public violence or endanger public safety.
Real risk or possibility is a test to be used to establish a subjective state of mind accompanying the publication of a false statement. It requires that accused must have reasonably foreseen the incitement or promotion of public violence or disorder or endangering of public safety. Therefore there has to be a nexus between the publication of the message and the incitement and promotion of public violence or danger to public safety. As noted above, the state does not need to prove these. What matters is that one has published or communicated the message. It is for this reason that the provision is vague, nebulous and embarrassing.
Is it reasonably necessary and justified in a democratic society?
Freedom of expression comes along with certain limitations. Where it serves to protect public interest, limitations are warranted. The offence is somewhat connected to this objective. In these perilous times where COVID-19 needs to be contained at all costs, public safety becomes of paramount importance. Countries worldwide have engaged in lockdown, with the W.H.O encouraging extension and other countries heeding the call so as to contain the spread. It seems to me that any message which encourages neighbours, friends, relatives, communities and even nations to stay at home is in the interest of public safety. To extend lockdown measures is certainly in the best interest of the public. To argue that a message passed on by a concerned citizen that lockdown is to be extended is contrary to public interest is to miss the point.
Section 31 poses problems in the sense that it does not specify that the statement should be intended to cause harm that will threaten public safety and order to a certain degree. Compared with section 36 of the same Act which spells out the offence of public violence and requires that accused acts…forcibly and to a serious extent to disturb peace and security or public order; it becomes easy to notice the vagueness of Section 31.
In the case of S v Chimakure and Others, the Supreme Court impliedly declared the provisions of Section 31 null and void for their inconsistency with the Constitution. To imagine even the punishment of up to 20 years imprisonment for an offence of this nature, shudders the mind.
Conclusion.
It seems to me that the government has another motive in bringing charges against the accused person on the basis of this section. The fact that the President later issued out a statement which confirmed the “false press statement” to be true, the message in itself is not a threat to public safety shows to me that the whole issue has been overtaken by events.
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