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As the nation mourns the sad passing away, yesterday 15 January 2020,
of one of the pioneer founding nationalist leaders of Zimbabwe’s
liberation struggle against colonial rule and oppression, Morton Paul
Malianga, I could not help making parallels between this gallant
hero’s impressive history – most particularly, his perilous struggle
journey, and the painful persecution he suffered at the hands of the
racist Ian Douglas Smith’s Rhodesia regime – with the inhuman and
degrading repression today’s human rights defenders are enduring under
a ‘free and independent’ Zimbabwe.

As I read through Malianga’s eulogy – which, was filled with acts of
unquestioned patriotism and devotion towards the emancipation of the
people of this great nation, yet in the face of unthinkable horrendous
persecution, at the behest of the Rhodesian establishment, especially
the constant arrests, and the subsequent ten years he served in prison
– my thoughts immediately went straight to how exactly the same
brazenly cold-hearted repression was being unleashed on such modern
day liberation icons as Hopewell Chin’ono, Job Sikhala, Fadzayi
Mahere, and so many others, who have been repeatedly arrested, merely
for speaking out against state injustices, and corruption in the
corridors of power.

The more I went through Malianga’s tribulations in his valiant walk to
freedom, the history of other liberation struggle stalwarts flooded
into my mind – and, the similarities between their stories, and what
we are witnessing today in Zimbabwe, sent shivers down my spine.

I remembered how the late heroine, Sally Mugabe, was arrested and
jailed for ostensibly insulting the queen of England, Elizabeth II –
for her country’s role, as the colonial power, in the ruthless
oppression of the people of this country.

At the same time, I tried to come up with a possible number of those
arrested for insulting the president of a ‘free and independent’
Zimbabwe – however, I failed to reach a figure, as the numbers were
staggering, and record-breaking.

What more, the laws being used in present day Zimbabwe to persecute
and prosecute all those perceived to have either insulted the
president, or published false information – as is presently the case
with Chin’ono, Sikhala, and Mahere – have long been struck off, and
declared unconstitutional by the Constitutional Court.

Nevertheless, even when those expressing their genuine dissatisfaction
and anger towards the Zimbabwe regime’s rabid mismanagement, wanton
corruption, and gross human rights violations are charged under
existing laws, that does not justify the repression of the people –
as, even under Rhodesia, those Sons and Daughters of the Soil, who
were placed under restriction, arrested, detained, or jailed, were
prosecuted for violating the laws of the country…yet, that could
never justify, or sanitize, this barbaric repression of people, who
were merely fighting for their rights, dignity, and equality in their
own motherland.

Even the liberation struggle itself, was a violation of the law.

That is why, other nationalist icons like Edson Zvobgo, would be so
livid in their condemnation of what he termed, ‘socio-legal’ society –
whereby, repressive and unjust laws were used to further oppress,
marginalize, and disenfranchise the citizenry – which, is exactly what
is being seen in an apparently ‘free and independent’ Zimbabwe.

When a country relies on unconstitutional laws to silence, intimidate,
arrest, and imprison those who express their just demands for an end
to high-level corruption, ruinous economic policies, unfair labour
practices, and the general decay of civil rights – more so, whilst
exercising these rights in accordance to constitutionally enshrined
provisions, such as peaceful demonstrations, freedom of expression and
freedom of the media, freedom of assembly and association (even in
line with COVID-19 regulations) – then, what difference is there with
what people like Malianga, were subjected to under the Rhodesia
regime?

In fact, could we not go further and say that, the Rhodesian scenario
was slightly better, as racist authorities faithfully enforced
existing oppressive laws to the letter – whilst, on the other hand,
our own ‘free and independent’ Zimbabwe government, goes as far as
violating the constitution, and using laws that have been declared
non-existent by the highest court in the land.

In other words, the people of Zimbabwe can justifiably say that, the
country has gone beyond being a mere ‘socio-legal’ establishment – as,
was the case with the Rhodesians – but, rather had morphed into a
completely ‘lawless’ society.

As the nation mourns the great pioneer founding nationalist hero,
Morton Paul Malianga – and, read his brave history, especially the
torment and suffering he was subjected to, by the Rhodesia regime, in
his noble quest for Uhuru for the people of Zimbabwe – let us always
remember that, such persecution and gallantry is what made him a hero
of heroes, and as such, we need to draw parallels with what today’s
human rights defenders are going through under what was supposed to be
a ‘free and independent’ Zimbabwe.

It is clear that, we are witnessing history being written, and
repeated, right in front of our eyes – as, most of us, who had not
been born yet, or were still too young, in the time of Malianga, and
other brave Sons and Daughters of the Soil, in the 1960s and 70s, who
endured immeasurable cruelty and heinous repression, in their fight
for a just society – can witness the same events unfolding, today, as
a new generation of heroes and heroines is created, by the Zimbabwe
regime, as it seeks to replicate what occured under Rhodesia…but,
only this time around, going ten steps further in the wickedness,
thereby creating more heroes than what Smith ever managed.

A few years from now, when a genuinely free and independent Zimbabwe
has been born – whereby, each and every citizen can share equitably in
the vast national cake, their rights, dignity, and wellbeing respected
with sacrosanctity, and with a government that is truly ‘of the
people, by the people, for the people’ – the next generation will also
read the gallant stories of today’s Son and Daughters of the Soil, who
soldiered on in the perilous struggle against a corrupt, ruinous, and
brutal Zimbabwe opportunistic ruling elite, which responded with
cold-hearted ruthlessness, but who never gave up, until a new Zimbabwe
for all was born.

© Tendai Ruben Mbofana is a social justice activist, writer, author,
and speaker. Please feel free to contact him on WhatsApp/Call:
+263733399640 / +263715667700, or Calls Only: +263782283975, or email:
[email protected] com

The fund was launched by African industrialist Adam Molai in November 2020 with $1m available for African entrepreneurs. The increase in funding is from US-based angel investing and mentorship firm Simba Global Start-ups.

Is it a Crime to Publish False Statement Undermining Public Confidence in a State Agency?

Earlier this month reports circulated on social media alleging that a police officer in Harare had struck a woman with his baton and killed a baby strapped to her back.  The Police issued a denial, saying that the police officer had tried to stop a kombi by smashing its windscreen.  Glass fragments hit a woman and her baby, and a fracas ensued.  The mother and child were taken to a clinic and found not to have suffered injury.

A well known investigative journalist, Mr Hopewell Chin’ono, and two prominent opposition politicians, Mr Job Sikhala and Adv Fadzayi Mahere, have been arrested for publishing or communicating the original report alleging that the child had died.  They are being charged with contravening section 31(a)(iii) of the Criminal Law Code, which reads:

“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—

     …

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

     …

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

be guilty of publishing or communicating a false statement prejudicial to the State and liable to a fine up to or exceeding level fourteen [currently Z$120 000] or imprisonment for a period not exceeding twenty years or both.”

Invalidity of the Charge

Whatever really happened to the woman and her baby – and the police version is being queried – there is no legal justification for charging anyone with contravening section 31(a)(iii) of the Code, because in 2014 the Constitutional Court, the highest court in the land, declared the section unconstitutional and void.  The history of that declaration is as follows:

• In 2009, before the present Constitution came into force, two members of staff of the Independent newspaper were charged with contravening section 31(a)(iii) by publishing an article alleging State agents had been guilty of illegal abductions.  They applied to the Supreme Court for an order declaring that the section infringed the right to freedom of expression guaranteed by the former Constitution and was therefore void.
• In October 2013, after the present Constitution came into force, the Supreme Court declared that section 31(a)(iii) did indeed contravene the former Constitution.  The judgment can be accessed on the Veritas website [link] – but be warned:  it runs to 84 densely-reasoned pages.
• Under section 24 of the former Constitution the Supreme Court was obliged to call on the Minister of Justice to show cause why it should not issue a final order declaring section 31(a)(iii) to be unconstitutional.  This provision gave the Minister an opportunity to inform the court of any policy considerations, which had not already been considered by the Court, which might justify the Court in altering its judgment.  The Court accordingly invited the Minister to submit policy reasons to the Constitutional Court as to why a final order should not be made.
• The Minister filed a document criticising the Supreme Court’s judgment but not putting forward any policy considerations that might persuade a court to take a different view.  At the hearing before the Constitutional Court, the Minister’s lawyer conceded that the Supreme Court’s order should be made final.
• Accordingly, on the 22nd July 2014, the Constitutional Court confirmed the order, declaring that section 31(a)(iii) “was in contravention of s. 20(1) of the former Constitution and therefore void.” This judgment too can be accessed on the Veritas website [link].
• The wording of the Constitutional Court’s order is important:  it said that because section 31(a)(iii) contravened the former Constitution it was void – i.e. it did not exist in law.  It was, and is, a nullity.

It must be understood that the section did not become a nullity when the Constitutional Court declared it void.  It always was a nullity as it contravened the former Constitution;  the Court’s declaration was simply a statement of a pre-existing legal fact.  This is because section 3 of the former Constitution stated:

“This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

Section 2(1) of the present Constitution is very much the same.

If therefore Parliament attempted to pass a law inconsistent with the former Constitution – and if Parliament attempts to pass one inconsistent with the present Constitution – the attempt had and has no legal effect and the purported law is not a law and never was a law.  It is and always has been a nullity.

This point has been made by the South African Constitutional Court and again by our own Constitutional Court.

Why then are the three being charged with contravening section 31(a)(iii), which is not and never has been a valid law?

The prosecution’s arguments

It seems that the prosecution is raising two arguments:

1. The Constitutional Court declared the section to be inconsistent with the former Constitution, not the present one.  This argument has no substance at all because, as we have said, the effect of the Court’s declaration was that the section had never been valid.  The coming into force of the new Constitution did not miraculously revive it:  although paragraph 10 of the Sixth Schedule to the Constitution states that all existing laws continue in force, that applies only to laws that were in force before the Constitution came into operation [see the definition of “existing law” in paragraph 1 of the Schedule] – and section 31(a)(iii) was never in force.
2. The section was amended by the General Laws Amendment Act (No. 3 of 2016).  It is true that the Act did amend section 31(a)(iii) by updating the reference to the Prisons and Correctional Service, but that cannot be construed as re-enacting the whole provision.  Quite obviously it was a mistake and the drafter simply overlooked the fact that the section had been declared void.  Drafters, like everyone else, make mistakes.  If Parliament had intended to defy the Constitutional Court and re-enact the section, it would have made its intention much clearer.  Anyway, it is most unlikely that Parliament had such an intention because:

• The Supreme Court’s judgment was carefully reasoned and followed judicial authority in Zimbabwe and elsewhere.  The Constitutional Court refused to reconsider the judgment in the second of the cases mentioned above.  It is vanishingly improbable that the Constitutional Court would reconsider it now.
• Moreover both judgments were delivered by the present Chief Justice with the unanimous concurrence of all the other judges who heard the two cases.  Many of those judges are still on the Bench.  They are unlikely to have changed their minds.
• The provisions of the present Constitution which protect freedom of expression are just as strong and far-reaching as those in the former Constitution.  Although the present Constitution excludes “malicious injury to a person’s reputation or dignity” from protection, section 31(a)(iii) does not require malice – a point made by the Supreme Court in its judgment – and so is too wide to fall within the exclusion.

Neither of the above two arguments has any substance, therefore.

Should the Three Persons be Remanded?

A magistrate can remand an accused person, either in custody or on bail, if the magistrate considers there are reasonable grounds to suspect the person has committed a criminal offence.  If what the person is alleged to have done does not amount to an offence then there can be no reasonable grounds to suspect that he or she has committed one.

The three accused persons are charged with contravening section 31(a)(iii), a statutory provision that does not exist and never has existed.  They cannot be remanded on that charge.

Nor indeed should they have been arrested on such a charge because, like remands, arrests can only be made if there are reasonable grounds to suspect that the arrested person has committed, is committing or is about to commit a criminal offence.  If the suspected conduct does not constitute an offence there can be no lawful arrest and the arresting officer may be liable to a civil suit for unlawful arrest.

And finally, they should not be prosecuted on a charge of contravening section 31(a)(iii) because if a prosecution is to be lawful there must be “reasonable and probable cause” to believe that the accused person committed the offence charged.  If the offence charged is not an offence there cannot be reasonable and probable cause and the prosecutor may be sued for malicious prosecution.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured

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Kinney Recruiting

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by Law School Transparency, in 2020, recent graduates of which law school have the highest median salary?

Hint: This law school’s median salary is an impressive $185,760 — $6k over the school in 2nd place.

See the answer on the next page.

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security.

At our firm we handle a lot of complex litigation, very often on a risk-sharing basis. That means we are willing to reduce the hourly rates we charge in return for a contingency fee if we obtain a good result for the client, as agreed upon in some fashion in our engagement letter. Clients like this since they see us as in it with them: if they win, we do. If they don’t achieve what they sought, we get paid less.

Many business clients have commented to me over the years that when dealing with lawyers who don’t bill this way — when dealing with lawyers who bill by the hour way, as is typical — such clients think that these lawyers have little concern for the fees the clients have to pay, or the result. Indeed, many business clients tell me that they think these lawyers are just trying to bill as much as they can to increase their bill.

Goodness knows I’ve seen churning and more than once have been adverse to a well-resourced firm where they simply seemed to pile the bodies onto the case and litigated every tiny thing even when I could see no tactical or other benefit to their client. Overbilling (as opposed to inaccurate billing) certainly happens. Whether it does as frequently as my clients have complained is beyond the scope of this short article. But I acknowledge it happens.

As lawyers we must be mindful of all the costs that our clients incur in a litigation, and legal fees are only one of those costs. Part of being good counsel is determining: is it really worth the salt to fight? I find myself frequently advising prospective plaintiffs or claimants to consider alternatives to litigation or arbitration. I likewise find myself advising defendants to consider paying something even when they believe they have done nothing wrong, simply to put a litigation behind them. Costs — including not just money, but time — matter, and as advisors we must keep this in mind with regard to the counsel we give our clients.

But what we cannot — or at least should not — do is let our own fee interest dictate our advice, or how we fight. I’m not saying we’re to be taken advantage of — we’re not. But that’s different than allowing our fee interest to dictate how hard we fight, or not, or what tactical suggestions we make to the client. As noted above, our risk-sharing clients in fact think we do do that, and like us for it. Risk sharing helps in client relations. We must also be mindful of our higher ethical and professional obligations to give the appropriate counsel to the client, and, as they say, zealously advocate for the client, regardless of the fee.

Lawyers will generally litigate a smaller case differently than a big case, and, indeed, we often should. But that’s because the costs and results might be different to the clients between those cases. We cannot let our fee interest dictate how we advise our clients, or how we try to win for them.

John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

It appears that Parler’s antitrust lawsuit against Amazon for suspending its AWS account isn’t off to a very good start. In an emergency hearing on Thursday to see whether or not the judge would order Amazon to turn AWS back on for Parler, the judge declined to do so:

U.S. District Judge Barbara J. Rothstein in Seattle said during a hearing Thursday she’s not inclined to order Amazon to immediately put Parler back online. Instead, she expressed interest in taking a more measured approach to deciding whether she should order a permanent injunction to restore web-services to Parler.

Having spoken to two people who followed the hearing, it sounds like the judge did not make an official ruling yet, but said she will quickly. Another comment I heard from people who listened to the hearing was that Parler’s lawyer did not seem to understand some fairly basic concepts regarding how all of this works, which does not bode well for his client. Also, Amazon’s lawyer has said that they told Parler that the they would allow the site to return to AWS if it put in place a real content moderation strategy — which again leans into the fact that they suspended, rather than terminated Parler’s account (this has become a key point in the lawsuit, as Parler argues that termination violates their contract, while Amazon says the account was merely suspended, which is different from terminated).

One other point: Parler’s lawyer apparently told the judge that Parler could not afford to litigate this case all the way to judgment (in the context of arguing that there would be irreparable harm in not turning the site back on immediately, when asked why any harm couldn’t later be dealt with by an award of damages). I find this amusing, because just last week (which feels like a century ago, of course), Parler insisted that it didn’t need Section 230 at all and CEO John Matze was saying that Parler was big enough to fight off any lawsuits that would come about without 230. At the time, I pointed out to him that while his backers, the Mercer family, are wealthy, they’re not that wealthy.

Still, it’s pretty stunning to go from “eh, we can handle such lawsuits if we’re liable for our users postings” to “uh, we can’t afford this lawsuit we filed to keep our site alive” in just one week.

Judge Not Impressed By Parler’s Attempt To Force Amazon To Put It Back Online

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