Shantel Rusike v The State

The applicant, a 20-year-old female, was arrested on 25 December 2012 and charged with contravening section 33(2)(a) of the Criminal Law (Codification and Reform) Act (the Criminal Law Code). The charge alleged that on 24 December 2012, she dispatched a picture depicting President Robert Mugabe in a nude state to another person, realizing there was a real risk that it would cause hatred, contempt or ridicule of the President. The State Outline alleged she sent this picture via WhatsApp with text stating "Robert Mugabe turning 87 years on 21 February 2011. Happy birthday Matibili operation." However, the facts established that the applicant did not actually have a picture of the President in the nude. Instead, she had taken a picture of a child in the nude and replaced the child's head with a picture of the President's head. The applicant brought a constitutional application challenging the validity of section 33(2)(a) of the Criminal Law Code, arguing it violated her rights to freedom of expression under section 61(1) of the Constitution and freedom of conscience under section 60 of the Constitution.

• Whether section 33(2)(a) of the Criminal Law (Codification and Reform) Act is unconstitutional for violating the right to freedom of expression enshrined in section 61(1) of the Constitution
• Whether section 33(2)(a) of the Criminal Law Code violates the right to freedom of conscience enshrined in section 60 of the Constitution
• Whether the conduct alleged by the State in the charge sheet and Outline of State Case, if proved at trial, would constitute the offence with which the applicant was charged
• Whether the statement made by the applicant was false and capable of engendering feelings of hostility towards the President or causing hatred, contempt or ridicule

The matter was struck off the roll. All nine judges agreed with this disposition.

The binding legal principle established is that for a charge under section 33(2)(a) of the Criminal Law Code to succeed, the State must prove: (1) the actual conduct committed by the accused (not some other conduct); (2) that the conduct, if proved, constitutes the offence charged; and (3) that the statement was false and capable of being believed as true by right-thinking members of the public such that it could engender feelings of hostility towards the President or cause hatred, contempt or ridicule. A caricature or satirical image that no right-thinking person could be deceived into believing as a true statement about the President does not constitute a false statement within the meaning of section 33(2)(a). Furthermore, the State cannot prosecute an accused for conduct different from what was actually committed, and where there is a fundamental mismatch between the alleged conduct and the actual conduct, the matter should be struck off the roll.

The Court made observations about the nature of the offence without ruling definitively on the constitutional challenge. The Court's discussion of what would be required to prove the offence (that the statement must be false and capable of being believed as true, capable of engendering feelings of hostility or causing hatred) provides guidance on the proper interpretation of section 33(2)(a), even though the Court did not formally declare the provision constitutional or unconstitutional. The Court's comment that "no right-thinking person could be deceived into believing the caricature sent by the applicant to be a true statement about the President" suggests a protective approach toward satirical or caricature expression, though this was not essential to the disposition of the case. The Court also noted the illogical nature of the statement about the President's age, which was not strictly necessary for the decision to strike the matter off the roll but illustrated the absurdity of the charge.

This case is significant in Zimbabwean constitutional jurisprudence for several reasons: (1) It demonstrates the Constitutional Court's approach to constitutional challenges where the underlying criminal charges are fundamentally defective - the Court may dispose of the matter on non-constitutional grounds without reaching the merits of the constitutional challenge; (2) It reinforces the principle established in Williams and Anor v Msipha that courts must carefully examine whether the conduct alleged, if proved, would actually constitute the offence charged; (3) It provides important guidance on the interpretation and application of section 33(2)(a) of the Criminal Law Code, particularly regarding what constitutes a false statement capable of engendering hostility or causing hatred, contempt or ridicule of the President; (4) The case illustrates the courts' protection against prosecution for political caricature or satire that no reasonable person would believe to be true; (5) Although the Court did not rule on the constitutionality of the 'insulting the President' provision, the judgment's reasoning suggests judicial skepticism toward broad application of such laws that could impinge on freedom of expression. The case has implications for freedom of expression and political speech in Zimbabwe, particularly in the digital age and regarding social media communications.