Treason and Subverting Constitutional Government – Court Watch 12 / 2019

Introduction

Security legislation is often used by authoritarian governments as a means of repressing dissent. Since the protests of mid-January 2019, a reported 22 people have been arrested and charged with the crimes of treason and subverting constitutional government. In order to assess whether this is a repressive response to legitimate protests against the government, or whether there has in fact been a spate of those crimes, we need to have a clear understanding of what the crimes entail.

Both treason and subverting constitutional government are crimes under the Criminal Law (Codification and Reform) Act [the Criminal Law Code] and they overlap to some extent. In this Court Watch we shall outline the differences and similarities between them.

Treason

The crime of treason is very broadly defined in section 20 of the Criminal Law Code. It is a crime committed by any citizen or resident of Zimbabwe who does any act or who incites, conspires with or assists anyone else to do any act, inside or outside Zimbabwe, with the intention of “overthrowing” the Government. Perhaps because the definition is so broad, section 20(2) gives three specific instances of activity which may constitute treason, if the intention is to overthrow the Government:

(a) preparing or endeavouring to carry out by force any enterprise which usurps the executive power of the President or the State;

(b) in time of war or during a period of public emergency, doing anything which assists any other State to engage in hostile or belligerent action against Zimbabwe;

(c) instigating any other State or foreign person to invade Zimbabwe.

The crime can be committed by the doing of “any act” whatever so long as the intention is to overthrow the Government. That is the essential element of treason ‒ the intention to overthrow the Government.

What is meant by “overthrow”? The common dictionary definition of the word is “to remove or defeat through the use of force” so in the context of treason the use of the word indicates that the treasonous act must entail some degree of violence or force ‒ and of course it must be illegal. This is made clear by section 20(3) of the Code which states that the crime does not extend to acts directed at replacing the President or the Government by lawful constitutional means. Nor does it refer to organising protests against a government.

Subverting Constitutional Government

This crime is defined in section 22 of the Criminal Law Code. The definition is a bit convoluted but broadly it comes to this: a person commits the crime of subverting constitutional government if he or she:

  • organises or sets up a group or body to:
    • overthrow or take over the Government unconstitutionally
    • usurp the functions of the Government, or
    • coerce the Government, or
  • advocates or even suggests that such a body should be set up, or
  • supports or assists such a body in overthrowing, taking over, usurping or coercing the Government.

The background to this crime is that it was created in the 1960s by the white Rhodesian regime to try and prevent African nationalists from urging the United Nations to set up a democratic government in exile. Hence the reference to setting up a body to overthrow, usurp or coerce the Government.

Obviously there is an overlap between this crime and treason. Setting up a body to overthrow the government is an act done with the intention of overthrowing the government, and so meets the definition of treason. The same goes for setting up a body to take over the Government by unconstitutional means. The same may also apply to setting up a body to coerce the Government, because “coerce” is defined in section 22 as using physical force or violence to compel the Government to do or not to do something.

It is to be noted that the crime involves setting up a body to overthrow, usurp or coerce the Government, or assisting such a body or urging or suggesting that such a body should be set up. For the crime to be committed, in other words, an alternative government must be established or at least be the aim of the person committing the crime.

Penalties

The maximum penalty for treason is life imprisonment, and for subverting constitutional government it is 20 years’ imprisonment. [Section 20 of the Criminal Law Code allows the death sentence to be imposed for treason, but this is unconstitutional by virtue of section 48 of the Constitution – this is another example of a law that has not been aligned with the Constitution]. For neither crime is an option of a fine permissible.

The Law in Practice

As noted at the beginning of this bulletin, trade unionists and opposition activists have been charged with both treason and subverting constitutional government, particularly after violent demonstrations earlier this year against the Government’s economic policies. Without commenting on the individual cases we can make a few general observations:

  • Although the crime of treason is widely defined, the accused person’s conduct must be accompanied by an intention to overthrow the Government by force. Calling for demonstrations and protests or participating in them, even they turn violent, cannot amount to treason unless the purpose is to overthrow the entire Government. It is not enough for accused persons to want to persuade or compel the Government to change its policies. That is not treason.
  • It is not even enough for the prosecution to prove that the accused person envisaged a real risk or possibility that the violent demonstrations he or she called for or participated in might bring down the Government: in order to secure a conviction for treason the prosecution must prove that the accused actually intended that result.
  • At least two witnesses are needed to convict a person of treason: this is stated in section 269 of the Criminal Procedure and Evidence Act.
  • A person cannot be convicted of subverting constitutional government unless he or she has set up or intends or is advocating the setting up of a body to overthrow, take over or coerce the Government. Calling for demonstrations, however inflammatory the accused person’s language, and participating in demonstrations, however violent they become, does not constitute subverting constitutional government.

The Role of the Courts

The courts, particularly magistrates courts, have an important role to play in ensuring that people are not improperly charged with treason or subverting constitutional government.

All arrested persons have to be brought before a court, usually a magistrates court, within 48 hours after their arrest. The magistrate’s task is to decide whether they have been properly arrested and whether there is a reasonable suspicion that they have committed the crime for which they have been arrested. If the magistrate does not have that reasonable suspicion, he or she must order the arrested person to be released.

This means that before remanding someone on a charge of:

  • treason, the magistrate must have a reasonable suspicion that the person committed an act and intended by that act to overthrow the Government by force. If the only allegation against the accused person is that they took part in a violent protest against the Government’s policies, or urged others to do so, it is not a logical inference that they actually intended to bring down the Government.
  • subverting constitutional government, the magistrate must have a reasonable suspicion that the accused person set up or urged the setting up of a body to overthrow, subvert or coerce the Government. Taking part in a protest or demonstration, even a violent one, would seldom give rise to such a suspicion.

Magistrates, like all judicial officers, have a duty to apply the law impartially, expeditiously and without fear, favour or prejudice [section 164(1) of the Constitution]. They must remember that their role is paramount in safeguarding human rights and freedoms and the rule of law [section 165(1)(c) of the Constitution].

When persons come before them for remand, therefore, magistrates must decide whether there is a reasonable suspicion that those persons committed the crimes alleged against them ‒ and they must make the decision strictly in accordance with the law, without fear, favour or prejudice. If the persons are alleged to have done something that does not fall within the definition of the crime charged against them, then magistrates are duty bound to order their release. By doing so the magistrates are not condoning crime or violence: they are upholding the law.

As the old legal maxim goes: Fiat justicia ruat coelum [Let justice be done though the Heavens fall]

Source: Veritas