Tendai Biti, a prominent lawyer, has hailed the High Court’s ruling as a “blow for freedom of expression” after it struck down a law that criminalises !nsult and deemed it unconstitutional.
The law, section 95(1)(a) of the Criminal Law (Codification and Reform) Act, criminalises any speech or conduct that “seriously impairs” the dignity of another person.
However, it does not define key terms such as “insult” or “serious impairment”, leaving these determinations to the discretion of law enforcement officers and the judiciary.
The High Court ruling follows an application by Harare woman Amanda Cohen, who was arr3sted for insulting her nephew Aron Vico during a family dispute over inheritance.
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Cohen allegedly made derogatory remarks towards Vico, referring to him as a “thief” and a “gay boy”. Vico took offence to these statements, claiming that they caused him significant emotional distress and seriously impaired his dignity.
Cohen was convicted in the Magistrates’ Court and sentenced to community service.
She appealed the sentence to the High Court, arguing that the law was vague, lacked legal clarity, and granted excessive discretionary power to law enforcement officers and judicial officers. She also argued that the law allowed for arbitrary enforcement and led to disproportionate interference with her constitutional rights, particularly her right to free speech.
Justice Joel Mambara ruled that the law failed the proportionality test set out in section 86(2) of the Constitution, imposing greater restrictions on freedom of expression than are necessary to protect dignity. He also found that the vagueness of the law exacerbates its unconstitutionality, as it does not provide clear guidance on what constitutes criminal conduct.
The ruling comes after international human rights treaties, including the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the Universal Declaration of Human Rights, emphasized the importance of freedom of expression and encouraged states to rely on civil remedies rather than criminal sanctions for defamation and insult.
However, Cohen’s bid to have her conviction quashed failed, with Justice Mambara ruling that the High Court order dismissing her appeal remained valid and binding. The finding of constitutional invalidity now awaits confirmation by the Constitutional Court.
