THE Constitutional Court (ConCourt) has refused to confirm a High Court ruling that struck down part of the Patriot Act, a controversial law criminalising participation in meetings that discuss sanctions against Zimbabwe, among other issues.
A ConCourt bench consisting of Justices Antoine Guvava, Paddington Garwe, Rita Makarau, Annie Gowora, Ben Hlatshwayo, Bharat Patel and Susan Mavangira said the lower court’s decision was irregular. It further ruled that the ruling lacked legal foundation, though it acknowledged concerns about the drafting of the provision.
The case was brought by journalists Valentine Maponga and Paidamoyo Muzulu, together with civic group Veritas, who argued that section 22A of the Criminal Law (Codification and Reform) Act violates constitutional rights to free expression, association and a fair trial.
They said the provision was vague and risked criminalising mere attendance at international meetings where sanctions are discussed.
The High Court last year dismissed challenges to section 22A(2), which penalises citizens who engage foreign governments to plan military intervention or overthrow the government.
It, however, declared section 22A(3) of the Criminal Law (Codification and Reform) Act unconstitutional, finding that the phrase “intentionally partake” was undefined and could expose journalists and civic actors to liability simply for being present.
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On review, the ConCourt held that the application before the High Court was “incurably irregular” and that the applicants had not demonstrated standing under section 85 of the Constitution.
Justice Garwe, writing for the bench, said: “The declaration of invalidity that it made was not consistent with the law and cannot, therefore, be confirmed.”
The judges, nevertheless, addressed the substance of the dispute, citing the need for legal certainty.
“Declining confirmation on the basis, for example, that the application in the court a quo was irregular … would not result in legal certainty, as the need for clarity on the constitutional validity of the invalidated law would remain. Ultimately, it is this consideration that must prevail,” Justice Garwe wrote.
The applicants had argued that the penalties which include a fine, imprisonment, revocation of citizenship and disqualification from voting or holding public office were disproportionate.
They warned that the law could chill civic participation.
“The gravamen of the decision a quo was that the section was vague and therefore unconstitutional,” their heads of argument stated, adding that the penalties were “disturbingly disproportionate to the offence created by the impugned law.”
Parliament defended the amendment, saying it mirrored provisions in other countries and was necessary to deter citizens from lobbying foreign governments for sanctions.
It argued that Zimbabwe had suffered from restrictions imposed by the United States and Europe, and that the law was intended to protect sovereignty.
The High Court agreed with applicants that section 22A(3) was afflicted by vagueness, noting the concession by State counsel that “intentionally partake” was inserted in error.
It ruled that penalties such as revocation of citizenship and disqualification from voting were inconsistent with constitutional guarantees.
But the ConCourt took a different view.
While acknowledging the drafting flaw, it emphasised that the law’s objective was to protect Zimbabwe’s sovereignty from external interference.
“Other considerations must remain subsidiary to this overarching requirement,” Justice Garwe wrote, stressing that the court must ensure clarity on constitutional validity even when applications are procedurally defective.
The ruling leaves section 22A(3) intact, though the court’s remarks highlight the tension between national security legislation and constitutional rights.
Justice Garwe concluded: “A decision to decline confirmation may, therefore, be predicated on just one or several bases, be they procedural or substantive… irrespective of whether or not one basis may, ordinarily, be fully dispositive of the matter on its own.”