Home Main News Why Zimbabwe’s National Flag Ban Is Unconstitutional

Why Zimbabwe’s National Flag Ban Is Unconstitutional

by reporter263

Dr Alex T. Magaisa

The Zimbabwean government has effectively banned use of the national flag but making it the source of potential criminality and imprisonment. Today, the Ministry of Justice, Legal and Parliamentary Affairs issued a press release warning citizens against using the national flag in circumstances which are calculated or likely to show disrespect for it or to bring it into disrepute. It has cited the provisions of the Flag of Zimbabwe Act and regulations made under it, as the legal basis for the warning.Riot-police-watch-a-man-with-a-Zimbabwean-flag-over-his-shoulders-saluting-during-a-protest-on-Friday-1

This is obviously a response to the wave of protests over the recent months, starting with #ThisFlag movement, which used the national flag as its central symbol of expression and protest. This is part of the government’s desperate efforts to clamp down on the protests. For too long, ZANU PF had monopolised national institutions and symbols, until Pastor Evan Mawarire used the national flag to articulate his protest against government, which quickly drew the attention and support of other citizens both at home and abroad. The state’s response has been to use its repressive instruments, including violence and restrictive laws.This-flag

Back in July this year, I warned that the government would intervene to ban use of the national flag. In an article entitled “Can the Zimbabwean government ban the use of the national flag by #This Flag citizens’ movement?” I noted that pro-government media commentator and ZANU PF loyalist Nathaniel Manheru, widely believed to be George Charamba, the presidential spokesperson, had indicated in his column that restrictions would be introduced on use of the national flag.

I’m not surprised that the ZANU PF government has moved to invoke the existing legislation, hitherto unused, as a way of stopping citizens from using the national flag in their protests. Once against the government fails to attend to the causes of the protests and goes after the symptom.

However, as I argued in July in anticipation of this ban, the legislation under which the government acting is unconstitutional and should be challenged. I will reiterate the arguments in this piece.

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Section 5: arbitrary power

Section 5(1) gives powers to the President “to make such regulations as he considers necessary or convenient for the purpose of protecting the Flag from any use or application which, in his opinion, is improper”.

According to section 5(2) the presidential regulations “may provide for the regulation, control, restriction or prohibition of—

(a) the importation, manufacture, sale, loan, use, possession, wearing or display of the Flag or any reproduction or likeness thereof;

(b) the application to, or use on, any matter or thing whatsoever of the Flag or any reproduction or likeness thereof”

According to section 5(3), the penalty for breaching such regulations can be up to six months imprisonment, although there is an option of imposing a monetary fine.

Section 6: Disrespecting or bringing flag into disrepute

Section 6 of the Flag of Zimbabwe Act provides for the protection of the flag and criminalises the burning, mutilation or insulting the national flag or anything that resembles the flag “in circumstances which are calculated or likely to show disrespect for the Flag or to bring the Flag into disrepute”. A person found guilty of this offence can be imprisoned for up to 6 months although there is also the option of a fine.

Infringement of the right to protection of the law

Both the primary and subsidiary legislation are unconstitutional.

First, the legislation violates the right to protection of the law, guaranteed under section 56(1) of the Constitution. This right requires that the law must be clear, prospective and capable of being obeyed by citizens and therefore capable of guiding citizens in the conduct of their affairs. If the law cannot do that, it is incapable of protecting citizens and therefore violates the right to protection of law.

The national flag legislation gives arbitrary powers to the President, creates vague, ambiguous and indeterminate offences over the use or application of the national flag and imposes penalties that are excessive and disproportionate to the said offences. The law does not articulate the circumstances under which they would be committing an offence or acting lawfully. It leaves arbitrary powers in the hands of the authorities. For this reason the law does not protect citizens but rather, it imperils them.

What exactly is meant by the offence of “insulting” the national flag? What is meant by bringing the flag into “disrepute”? Who makes the determination and at what point is that determination made? Is it before or after a person has used or applied the national flag? Punishing a person for something that he or she did believing it to be lawful at the time of acting is unfair, unreasonable and unconstitutional. The lack of precise definition of what constitutes “insulting” the national flag or bringing it into “disrepute” is a source of vagueness, which means the law is incapable of guiding the conduct of citizens and leaves them at the whim of public authorities.

In addition, section 5 refers to what the President considers in his opinion to be “improper” use or application of the national flag. But what exactly constitutes “improper” use of the national flag? What criteria does the President use to judge whether use or application of the national flag is “improper”? There is no legal guidance in the legislation.

Infringement of identity, dignity and free expression

The national flag is a national institution to which citizens claim collective ownership and expresses their identity, collectively and individually. The national flag is an expression of identity and any regulation or restriction of its usage affects the expression of citizens’ identity. Since it is at the heart of a person’s identity, it is arguably vital to one’s dignity, one of the absolute rights protected under the Constitution (section 51). Some of the offences created under the legislation – such as the so-called insulting the national flag offend the dignity of individuals whose identity is tied to the national flag.

The legislation unduly limits the freedom of expression of identity provided for under section 61 of the Constitution. Section 61. It is a critical foundation to the exercise of other rights, including the exercise of the freedom to demonstrate under section 59 and political rights under s. 67. The ability of any individual to express him or herself is at the core of the right to liberty.

Legislation which affects the freedom of expression or the right to protection of the law has to be measured against the test of legality under the Constitution. The Constitution allows for exceptions, whereby some rights may be limited. However, these limitations must be “only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors …” A number of factors are listed under this provision.

The nature of the right limited and the “the nature and extent of the limitation” must be considered. In this case the limitation involves vague and arbitrary powers.

The legislation also imposes more restrictions on freedom of expression than are necessary to achieve the purpose of protecting the national flag. This is evident in the vagueness and ambiguity of the offences and the penalties imposed under the legislation.

The court must consider “whether there are any less restrictive means of achieving the purpose of the limitation”. Assuming that it is necessary to protect the national flag, it is arguable that the vague and ambiguous offences created and the excessive penalties imposed are far more than is necessary to achieve the objectives of the limitation. The same objective can be met by less intrusive means.

Infringement of s. 134(b) of the Constitution

It is becoming clear that section 134(b) is one of the most important provisions of the Constitution. It prohibits subsidiary legislation from limiting or infringing upon rights set out in the Declaration of Rights. Since the regulations under which the government is acting limit the right to dignity, freedom of expression, right to liberty and right to protection of the law, they go beyond section 134(b) and are therefore unconstitutional. The President cannot use regulations to enact rules which limit these rights and freedoms.

Loophole

Finally, there is a loophole in the regulations which are clearly designed to prohibit the import or manufacture of the national flag for commercial purposes. The conditionality in all cases is the where the activity is designed to sell the national flag. This does not cover where the flag is manufactured, imported or distributed for purposes of charity, education or other purposes as long as it’s not being sold. The regulations might affect vendors but they should not stop individuals, groups or organisations manufacturing, importing or distributing the national flag or items with the national flag. Of course the problem is the state might argue that they are insulting or bringing the national flag into disrepute, the very source of the vagueness, ambiguity and unreasonableness which I have just argued is unconstitutional.

The legislation under which the government is acting must be challenged in court because it is patently unconstitutional. Even so, there is nothing to stop individuals or organisations from manufacturing or importing the national flag as long as it is not for purposes of selling it. Doing so for charity or other purposes is perfectly legal.

But the latest move shows the Zimbabwean government’s ridiculous determination to create a police state. Like the proverbial man wielding a hammer and for whom every problem is a nail, the law must be used to clamp down on citizens’ freedoms.

However, as I have pointed out in recent weeks, the response to this is no longer merely legal but political. ZANU PF is using the law to make a political statement. The opposition and citizens must understand that the solutions lie not just in the legal, but also in the political arena. It’s one thing to respond through the legal channels, but sooner or later, there must be a realisation that the solution is political. A political approach will determine whether citizens heed the warning or choose instead to defy it.

waMagaisa. Read more at www.alexmagaisa.com

wamagaisa@gmail.com     

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