The purpose of this article is to explain the essential elements of the new crimes created by the amendment and also to discuss on the rationale behind the amendment established on the 23^rd of December 2022. The Criminal Law Codification and Reform Amendment Bill, 2022 was published in the Government Gazette. The purpose of this bill is to amend provisions of the Criminal Law Codification and Reform Act [Chapter 9:23] (Principal Act) as well as to create new crimes. The bill has 5 clauses and of these only 4 contain new amendments to the criminal law of the country. Clause 2 oversees the introduction of section 22A under the principal Act which promulgates a new offence entitled `Wilfully injuring the sovereignty or national interest of Zimbabwe`, Clause 3 creates a mandatory minimum sentence for rape under s65, Clause 4 adds to the definitions of a dangerous drug as provided by s155 and clause 5 creates a new essential element of `knowledge` on the part of a public officer which effectively limits the scope of the offence.

The new section 22A
The rationale behind the introduction of this section is based on the need to discourage inhabitants of the country from seeking redress in foreign countries which has the effect of undermining the sovereignty, dignity and independence of Zimbabwe. This happens when the foreign entity promulgates sanctions or a trade boycott against Zimbabwe. The rationale behind the introduction of this new section is based on the notion that our Constitution provides for recourse internally even against the government as such there is no need to seek redress outside the country.

Section 22A (2)
For one to wilfully injure the sovereignty or national interest of Zimbabwe one must satisfy the following essential elements;

Physical element of the crime

• A citizen or permanent resident of Zimbabwe
• Must be inside or outside Zimbabwe

Mental Element of the Crime

• Actively partake in any meeting whose object one knows or has reasonable grounds for believing involves the consideration or the planning for;

1. Military or armed intervention in Zimbabwe by the foreign government concerned or other foreign governments or by any of the agents, proxies or entities or
2. Subverting, upsetting, overthrowing or overturning the Constitutional Government of Zimbabwe

This new offence introduces the essential element of knowledge of circumstance.

*The question which then becomes of great importance is what is the meaning of upset? in terms of s22A(2)(b)

Penalty
For section 22A(2)(a), the penalty is the same as that which is provided under Chapter 2 of the Code entitled `Crimes Against the State. ` The Penalty is Death or Life imprisonment. For section 22A(2)(B) the penalty is Imprisonment for up to 20 years without the option of a fine.

*It seems the crimes in question carry the same penalties and are strikingly similar to the originally existing crimes of treason and subverting a constitutionally elected government. The question then is, was the first part of this new section 22 necessary?

Section 22A (3)

For one to be charged with `wilfully injuring the sovereignty or national interests of Zimbabwe ` under this section it must be proved beyond a reasonable doubt that X’;

Physical elements of the Crime

• Is either a citizen or a permanent resident in Zimbabwe?
• Is inside or outside Zimbabwe

Mental Element

• Actively took part in any meeting whose object or one of the objects X knew or had reasonable grounds of knowing;

1. Involved the consideration or the planning for the implementation or enlargement of sanctions or a trade boycott against Zimbabwe.

For this offence it does not matter whether the sanctions or the boycott is untargeted, or targets an individual, the effect of such sanctions should indiscriminately affect the people of Zimbabwe as a whole or any substantial section.

Aggravating Circumstances

• It shall be regarded as aggravating where the action taken by the accused (meeting) actually results in the imposition of sanctions or trade boycott against Zimbabwe or a class of individuals within Zimbabwe

Where it is proved beyond a reasonable doubt that the meeting in question did not result in the imposition of sanctions or a trade boycott but the accusedmade or submitted for consideration any statement which he knew was not true then such a person shall not have a defence

Penalty

The penalty for this crime where aggravating circumstances are non-existent is a fine up to level 12 or imprisonment for a period which not in excess of 10 months.

Where it is proved by the Prosecutor that the offence was committed in aggravating circumstances then in addition to the prison sentence or fine, the accusedcan be;

• Terminated from being a citizen of Zimbabwe

This will not happen if the effect of which is to leave the accusedstate less

• Cancelled from being a permanent resident in Zimbabwe
• Prohibited from being a registered voter for at least 5 years and a period not extending 15 years
• Prohibited from filing a public office for a period of 5 years and a period which does not exceed 15years.

Where it is established that the accused`s meeting in question did not necessarily result in the implementation of any law which  is related to sanctions or a trade boycott but the meeting resulted in a non-binding admonishment by the foreign government, the onus is on the prosecution to show that although it was just an admonishment it still had the same effect of `injuring the sovereignty and national interest of Zimbabwe` If that is proved beyond a reasonable doubt it will be taken as an aggravating circumstance.

It is interesting to note that the penalties provided for when it is proven that the crime was committed in aggravating circumstances is not Constitutional. This is because the penalties limit on the freedom of expression, the right to vote and the right to hold public office as contained in s61, s67(3)(a) and (b) of the constitution. Although that is true, one must note that the above rights are not subject to the exception provided for in s86(3) of the constitution and can be limited provided that it is done so as a result of a law of general application.

Amendment of Section 65
This amendment alters the penalties for the crime of rape. The amendment makes the penalties harsher as a means to deter individuals from committing the crime. This is a response from the government to the recent surge in rape cases in the country. The increase in the penalties of rape also acts as a means to conform with various jurisdictions in SADC who have mandatory minimum sentences.

Where the crime was committed in aggravating circumstances the new penalty is imprisonment for life or imprisonment for at least 15 years. In that same manner, where it is shown that the crime was committed without aggravating circumstances the penalty is a period of not less than 5 years and not for than 15 years, effectively making the mandatory minimum sentence of rape 15 years in Zimbabwe.

It is submitted that this proposed amendment is a welcome addition to the criminal law of the country. The overall tenure of the amendment relates to the protection of the girl child through imposing stricter and harsher sentencing to the crime of rape. It confirms one of the Zimbabwean fundamental underlying principle of Ubuntu.

Amendment of Section 155
The amendment to this section relates to the definition of what constitutes a dangerous drug as defined by the Criminal Law Code. The section creates an exception for industrial hemp. The amendment is based on the need to reconcile the criminal law of the country with the investment and economic policy of the country. In 2018, the government introduced S.I 62/18 entitled “Dangerous Drugs (Production of Cannabis for Medicinal and Scientific Use) Regulations, 2018” where the government made it legal to farm industrial hemp and export hereby bringing in much needed foreign currency. Although one could now legally farm industrial hemp as per 2018, it is still a crime to be in possession of it. As such the amendment makes an exception to the possession of industrial cannabis.

Section 155(a)(iv) of the amended Criminal Law code reads `cannabis plant other than industrial hemp`
Section B of the same section defines industrial hemp as the plant cannabis Savita L and any part of the industrial plant, including the seed thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether growing or not growing with a delta-9 tetrahydrocannabinol concentration of not more than one per centum on a dry weight basis.

The amendment also addresses instances in which there is an investigation in terms of section 155 on whether the plant is cannabis or industrial hemp. In such a scenario the onus lies on the person asserting that it is cannabis to prove that assertion.

Amendment of Section 174
This section relates to the crime of criminal abuse of office. The amendment was necessary in order to limit the scope and application of the crime in question. It was noted by the law makers that the law as provided in section 174(1) was too broad in its scope and application that public officers were prosecuted for honest mistakes made during the course of their duties. The amendment rightfully creates the essential element of knowledge on the part of the public official.

For one to be charged under criminal abuse of office it should be proved that the accused;

• Should do anything which he or she knows is contrary to or inconsistent with his or her duty as a public officer or
• He or she omits to do anything which he or she knows it is his or her duty to do so

With the intention of conferring an undue influence or illegal benefit on someone else or unfairly prejudicing someone else.

For inquiries related to the Criminal Law Codification and Reform Amendment Bill and other criminal law matters, kindly get hold of our Criminal Law Practice Group on info@mmmlawfirm.co.zw