|Fully Authoritarian Regime|
|Restrictions must be provided by law|
|Law must be formulated with sufficient precision|
|a) Rights of others OR   |
|b) National security, public order, public health or morals|
|Necessary for a legitimate purpose (see legitimate grounds)|
|Only way to achieve protection|
|Restriction on expression should not be overbroad|
|Least intrusive instrument amongst those which might achieve their protective function|
|Proportionate to interest to be protected|
|Intent to incite discrimination, hostility, or violence|
|Direct & immediate connection between expression & threat|
Facts – In July 2016, Zimbabwean authorities arrested Pastor Evan Mawarire, a human rights activist, civil society leader, and the founder of the #ThisFlag movement, for incitement. Prior to his arrest, Pastor Mawarire led peaceful protests calling for governmental reform. As a part of the #ThisFlag movement, he asked Zimbabweans to stay at home instead of going to work which resulted in a shutdown of offices, schools, and banks to convey their discontent with the government. The movement was specifically protesting against government corruption and extortion, police brutality, and the country’s dire economic situation. Despite the peaceful nature of the protests, Zimbabwean authorities arrested him for inciting public disorder, under Article 37 “Participating in gathering with intent to promote public violence, breaches of the peace or bigotry” of Zimbabwe’s Criminal Law (Codification and Reform Act 23/2004). After being charged with inciting public disorder, the prosecution added a charge of subversion on the day of his trial without notifying his legal counsel. During the trial, a magistrate judge ruled that it was unconstitutional for the prosecution to bring new charges in court and acquitted Mawarire of all charges.
Update: Because the acquittal rested upon a procedural matter, Mawarire was left uncertain as to whether he could be arrested again on the same incitement and subversion charges in the future. On February 1, 2017, his uncertainty was confirmed. Upon his return to Zimbabwe on a flight from New York, and after he spent six months in exile in the United States, he was arbitrarily arrested at Harare International Airport and was charged with “subverting constitutional government” and “insulting the flag” for his role in the #ThisFlag movement’s protests in Zimbabwe. A week later, the Harare High Court ordered Mawarire to be released subject to the $300 bond, the surrender of his passport, and the obligation to report twice a week to police. He was expected to make a court appearance on February 17, 2017, but his trial date has been postponed.
Issue – Are the arrest, conviction, and sentencing of the Pastor Evan Mawarire under Article 37 of Zimbabwe’s Criminal Law (Codification and Reform) Act 23/2004 compliant with international incitement law standards?
Rule – Under the Universal Standard of the ICCPR, incitement laws must not stifle freedom of expression. The test is six-prong.
The first prong (legality) requires that the restrictions on freedom of expression are provided by law and that the law is formulated with sufficient precision to enable an individual to regulate his or her conduct.
The second prong requires legitimate grounds. Legitimate grounds include the protection of the rights of others and/or national security, public order, public health, or morals.
The third prong (necessity) requires that the restrictions must be necessary for a legitimate purpose, and must be the only way to achieve protection.
The fourth prong (proportionality) requires that the restrictions must not be overbroad, must be the least intrusive instrument amongst those which might achieve their protective function, and must be proportionate to their interest being protected.
The fifth prong (intent) requires the existence of intent, specifically the intent to incite discrimination, hostility, or violence.
The sixth prong (causation) requires a direct and immediate connection between the expression and threat.
First prong: (1) Legality – Restrictions on freedom of expression are provided by law under Article 37 “Participating in gathering with intent to promote public violence, breaches of the peace or bigotry” as required under the Universal Standard on incitement. However, the law does not articulate prohibited behavior with sufficient precision to allow individuals to regulate their conduct accordingly. For example, Article 37 imposes criminal penalties for any person “acting together with one or more other persons present with him or her in any place or at any meeting performs any action, utters any words or distributes or displays any writing, sign or other visible representation [...] intending thereby to provoke a breach of the peace or realising that there is a risk or possibility that a breach of the peace may be provoked.” The language of the law could very easily lead a person to be potentially punished for any form of expression. In Pastor Evan Mawarire’s case, it is not clear how participating in the #ThisFlag movement’s peaceful protests constituted incitement. Under the statute as written and its arbitrary application by Zimbabwean authorities in this case, the participation in any protest could be deemed a violation of Zimbabwean incitement laws. Therefore, Zimbabwean incitement laws both as written and as applied in Mawarire’s case are not sufficiently precise as is required under the Universal Standard on incitement. Therefore, the first prong is not satisfied.
Second prong: (2) Legitimate grounds – Article 37 cites the rights of others and public order as required under the Universal Standard on incitement. However the application of the law by Zimbabwean authorities in Mawarire’s case does not comport with legitimate grounds for restricting expression. Most protesters seek to raise public awareness, but do not necessarily infringe on the rights of others or jeopardize national security, public order, public health, or morals. Indeed, in this case there is no indication that the Mawarire’s participation in the #ThisFlag movement’s peaceful protest was a threat to the rights of others or public order. Therefore, as applied in this case, the second prong of the Universal Standard on incitement is not satisfied.
Third prong: (3) Necessity – The arrest and detention of the defendant was not based upon legitimate grounds, therefore it follows that the actions of the Zimbabwean authorities could not have been necessary as there was no legitimate purpose behind restricting his freedom of expression. In connection with this, international law requires that in their incitement laws, states only employ restrictive measures necessary for legitimate purposes, and that they be the only way to achieve the protective function. In Mawarire’s case, the Zimbabwean authorities restricted basic civic protest. Even if legitimate grounds were invoked, and there is no indication they were, criminalizing participation in peaceful protests cannot be the only way of protecting those interests. Therefore, the third prong of the Universal Standard is not satisfied.
Fourth prong: (4) Proportionality – The arrest and detention of Mawarire was not based upon legitimate grounds, nor was it necessary, therefore it follows that the actions of the Zimbabwean authorities could not have been proportional. First, the defendant was arrested and detained simply for participating in a protest which reveals that the law was applied in an overbroad manner, which is in violation of the Universal Standard on incitement. Second,, international law calls for states to employ the least intrusive measures when restricting expression. Even if the charges in this case sought to protect legitimate state interests, and imprisonment was a necessitated corollary to participating in a peaceful protest, the arrest, detention and charging of the pastor with a crime that carries five years does not satisfy the “least restrictive” test mandated by international human rights law. Therefore, the fourth prong of the Universal Standard is not satisfied.
Fifth prong: (5) Intent – Article 37 of Zimbabwe’s Criminal Law (Codification and Reform) Act 23/2004 does make references to an intent to “promote or expose” “hatred,” “breach of peace,” and “public violence.” However, the law does not go into detail as to how exactly such intent would be proved. In regards to the application of the law in Mawarire’s case, the intent requirement, namely the intent to incite discrimination, hostility, or violence requirement is absent in that there is no indication that any of those intentions existed. Zimbabwean authorities failed to demonstrate that Mawarire had any intent to incite discrimination, hostility, or violence when he simply participated in a peaceful protest. Therefore, the fifth prong of the Universal Standard is not satisfied.
Sixth prong: (6) Causation – In this case, Mawarire was charged and convicted simply for participating in a peaceful protest. Zimbabwean authorities failed to demonstrate that there was any causation between his act of participation and any threat of violence to anyone or a threat to public order. Therefore, the sixth prong of the Universal Standard is not satisfied.
Conclusion – Article 37 of Zimbabwe’s Criminal Law (Codification and Reform) Act 23/2004, both as written and as applied by the court in Mawarire’s case, is not compliant with the Universal Standard on incitement.
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