MEDIA HARASSMENT IN ZIMBABWE AND THE UNCONSTITUTIONALITY OF BLESSED MHLANGA' ARREST

The arrest of Blessed Mhlanga, a Zimbabwean prominent journalist for HStv owned by Alpha Media Holdings, by the Zimbabwe Republic Police(ZRP), on 24 February 2025, on spurious charges of transmission of data with intent to incite public violence or damage to property, for interviewing a rebellious ZANU PF central committee member, Blessed Geza, who on the day of interview condemned ZANU PF led government's failures under the leadership of Emmerson Dambudzo Mnangagwa, has been met with public outrage. Most Zimbabweans construed the actions of the State, as intimidation tactics on press freedom, and systemic media harassment. Many reverted to questioning the constitutionality of his arrest under such circumstances, and on the bases aforesaid fictitious accusations. 

Blessed Mhlanga is charged in terms of Section 164 Criminal Law (Codification & Reform) Act, and therein accused of transmission of data messages inciting violence or damage to property. The Cyber and Data Protection Act(CPDA), section 164 under which the charges emanate state that, any person who unlawfully by means of a computer or information system makes available, transmit, broadcasts or distributes a data message to any person, group of persons or to the public with intend to incite such persons to commit acts of violence against any person or persons or to cause damage to any property shall be guilty of an offence.

The promulgation of Zimbabwe 2013 Constitution, was celebrated on all social corners of Zimbabwe, as a political milestone, a remarkable transformation from the dark era of Robert Mugabe's media harassment, executive persecution of journalists, a new dawn for free speech and an end to press censorship.

The Preamble of The Zimbabwe 2013 Constitution:

Paragraph 4 to the preamble, of the Zimbabwe Constitution, recognises the need to entrench democracy, good, transparent and accountable governance and rule of law. Transparency and accountability in governance is achievable if public representatives in government are subjected to public scrutiny and criticism, and rule of law is enforced. 

Chapter 4 Provisions:

As part of fundamental rights and freedoms, section 60(1)(a) and (b), explicitly states that every person has the right to freedom of conscience, which include the freedom of thought, opinion, and the freedom to practise and propagate and give expression to their thought, opinion, whether in public or in private and whether alone or together with others. In that line, section 61(1)(a), state that every person has the right to freedom of expression, which include freedom to seek, receive and communicate ideas and other information. Section 61(2) says, every person is entitled to freedom of the media, which freedom includes protection of the confidentiality of journalists' sources of information. However, section 61(5) outline in peremptory terms, the limitations around the exercising of the freedom of expression and freedom of the media by saying, such freedom can only be exercised on the grounds that it does not incite violence, advocates hatred or hate speech, does not cause malicious injury to a person's reputation or dignity and breach of another person's right to privacy. Though, section 61(5), put limitations to the exercising of the freedom of expression and freedom of media, section 62(1) and (2) categorically state that, Zimbabweans including juristic persons have constitutionally protected  right of access to information as long the information required is in the interests of public accountability and for the exercise or protection of a right. Subject to that, section 62(4) points out that, in regard to right of access to information, legislation must be enacted to give effect to it, with authority to restrict access to information if it is in the interests of defence, public security or professional confidentiality, but to the extent that the restriction is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. 

Reading the charges against Blessed Mhlanga drafted in terms of section 164 of the Cyber and Data Protection Act(CDPA), of transmitting data with intent to incite violence or damage to property. For the charges to comply with section 61(5) limitations, the purpose of the transmission must qualify section 61(5) criteria. If charges qualifies section 61(5), taking into cognisance that, the charges does not violate section 61(1)(a), section 61(2), and provided the transmission was conducted in a manner deemed illegal, then it warrants an offence in terms of section 164 of CDPA. That is, if, the requirement of 'unlawfully' demanded by section 164 of CDPA on transmission of data does not mutilate the provisions of section 60(1)(a) and (b). If the transmitted data amounts to a thought, opinion and meant to propagate and give expression to a thought and opinion done in private or public, the charges are invalid as they amount to exercise of  freedom of conscience as outlined by section 60(1)(a) and (b), hence lack criminal substantiveness for the purposes of prosecution. 

More to that, the contents of section 164 of CDPA has to be interrogated to establish whether its provision align with fundamental values and principles of the Zimbabwe 2013 Constitution. Paragraph 12 of the preamble underscores to establish a nation founded on the values of transparency, equality, and freedom. Section 3(1)(a), (b) and (c), outlines the supremacy of the Constitution, rule of law and human rights and freedoms, as fundamental values of the the Constitution. Therefore if section 164 of CDPA, does not comply with 62(4) demands for restrictions to be fair, reasonable, necessary, justifiability, and does not conform with the fundamental values of the Constitution, and despite the limitations in section 61(5), does not seek to promote the rights enshrined in 60(1)(a) and (b), as well as the rights in section 61(1)(a) and section 61(2), to give effect to a democratic society based on openness, justice, human dignity, equality and freedom in terms of section 62(4). The Cyber and Data Protection Act, itself or its application to the particular case is inconsistent with the Zimbabwe 2013 Constitution, therefore in terms of section 2(1) of the same Constitution, invalid to the extent of its inconsistency.

Blessed Mhlanga, the journalist of the HStv, interviewed Blessed Geza, a member of the ruling ZANU PF party and Central Committee member. On the occasion of the interview, Blessed Geza lambasted ZANU PF government and its leadership under President Emmerson Mnangagwa as corrupt, who should never be allowed term-extension to 2030 at the end of his constitutional two-term limits in 2028 as some of his supporters within the party proposed. The interview was later broadcasted on all HStv media platforms to the infuriation of ZANU PF leadership, leading to the Zimbabwe Republic Police' arrest and detention of the journalist, and subsequently charged with transmission of data with intent to incite public violence or damage to property. What remains unclear is whether the interviewing of Blessed Geza and the broadcasting of the interview was intended to incite public violence or it was a mere act of a journalist doing his job. The onus is on the State to prove its case beyond reasonable doubt. However, in doing so the Constitution has to reign supreme.


The power of constitutionalism. Making Constitutional Democracy a Success in Zimbabwe.













..................................................................................................................................................by P Dekeya




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