HARARE Magistrate Nomsa Sabarauta on Monday 29 May 2017 granted an application filed by Kariba-based Remnant Pentecostal Church leader Pastor Phillip Mugadza challenging his arrest and prosecution for allegedly prophesying that President Robert Mugabe will die this year as a violation of his fundamental rights.
Pastor Mugadza was arrested on Monday 16 January 2017 by Zimbabwe Republic Police officers and charged with causing offence to persons of a particular race and religion in contravention of Section 42 (2) of the Criminal Law (Codification and Reform) Act Chapter 9:23
alternatively criminal nuisance as defined in Section 46 (2) (v) of the Third Schedule to the Criminal Law (Codification and Reform) Act Chapter 9:23.
Prosecutors charged that the clergyman caused the publication of a story in an online media publication, The Zimbabwe Mail on Friday 13 January 2017 entitled “Pastor Mugadza says President Mugabe to die in October 2017, thus says the Lord”.
Prosecutors claimed that Pastor Mugadza allegedly insulted the Christian religion and the African tradition by uttering some words, which are a taboo to predict someone’s death.
While his trial was ongoing, the clergyman’s lawyers David Hofisi, Gift Mtisi and Dorcas Chitiyo of Zimbabwe Lawyers for Human Rights filed a request in the Harare Magistrates Court seeking to have his matter referred to the Constitutional Court to determine the violation
of several of his fundamental rights.
In the application which was granted on Monday 29 May 2017 by Magistrate Sabarauta, Pastor Mugadza wants the Constitutional Court to determine whether or not Section 42 (2) as read with Section 42(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) is constitutionally invalid in that it violates the rights to dignity, equal protection and benefit of the law, freedom of conscience and freedom of expression as contained in Sections 51, 56 (1) and (3), 60(1)(a) and (b) and 61 (1)(a) of the Constitution.
Pastor Mugadza argues that that Sections 42 and 46 of the Criminal Law Code are in violation of Sections 51, 56 (1) and (3), 60(1)(a) and (b) and 61 (1)(a) of the Constitution and are contrary to the letter and spirit of the Constitution.
The clergyman further argues that while the Constitution protects all manner of expression, these two provisions criminalise distinct forms of expression hence it is clear that Section 42 of the Criminal Law (Codification and Reform) Act is a limitation on free expression.
The provisions, the Remnant Pentecostal Church leader argues, are not necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest and are excessive in their limitation of the right and do not ensure enjoyment of any rights or freedoms by others.
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