“A patriot cannot be created by legislation.” True patriotism ought to be an intrinsic feeling of appreciation of the good socio-economic welfare of the country, not a mandatory and repressive responsibility.

In August 2020, a motion on the need for a Patriot Bill was tabled in the Parliament of Zimbabwe. The fundamental reason behind the bill’s proposal is to promote and guard the country’s national interests through criminalising acts that campaign against Zimbabwe, including—but not limited to—private correspondence with foreign governments or any officer or agent thereof, false statements influencing foreign governments, or any other such conduct aimed at undermining the country.

IMPLICATION OF THE BILL

The bill will allow the National Prosecuting Authority to institute criminal prosecution against anyone who, in its discretion, is undermining the country or using false statements to paint a certain bad picture of Zimbabwe to foreign governments.

The vagueness of this provision is concerning because it gives the court too much discretionary power to decide what falls within the ambit of conduct aimed at undermining the country or false statements meant to influence foreign governments. The problem is that, in the case of a court under the influence of an individual or a political group, interpretation of the clause can be distorted to favour one political party's interests over others. Neutrality is an integral component of the adjudication process; without it, many tasked with interpreting and enforcing the bill's provisions may use it for political purposes. The politicisation of the bill would mean that the opposition's concerns about the country's economic shortcomings would be perceived as false statements portraying a false image of the government or undermining the country and therefore unpatriotic and worthy of retribution.

There is a fair possibility that personal and political vendettas will be settled under the pretext of protecting the nation's interests as per the bill. As a result, the opposition, civil society groups collaborating with international governments, campaigners, and ordinary people who are peacefully exercising their Constitutional rights, not peddling false statements, or undermining the country will face politically motivated prosecution while they seek equal justice, an end to police brutality, human rights abuses, and corruption.

One of the vocal civil society organisations, the Media Institute of Southern Africa, raised an important point in its statement, arguing that honesty about one’s country’s shortcomings should not be seen as unpatriotic or campaigning against one’s own country, rather as constructive criticism to be used for the betterment of the country. A case in point is last year's Twitter hashtag #ZimbabweanLivesMatter, in which millions spoke out against civilian arrests, political abductions, human rights violations, corruption, financial crisis, incompetence, lack of progress, and, most notably, in favor of the Zimbabwe they deserve. If the Patriot Act had been in effect at the time, such expressions by citizens, well within their rights, would have been politicised and interpreted as sanctioned illegal conduct intended as a campaign to undermine the country`s questionable  reputation.

It should be noted that Zimbabwe is still a developing nation with few opportunities for people to openly express their socio-political issues. Thus, when people express their grievances on various platforms including social media, it is not that they intend to campaign against the country; rather, they are using the most accessible medium to challenge those who are accountable. If this bill, which has the potential to restrict freedom, becomes law, it would censor the currently restricted outlets available, as well as limit most, if not all conduct by citizens seeking transparency and accountability.

THE IMPACT FOR THE ORDINARY ZIMBABWEAN

Should this bill, which silences any form of dissent, see the light of the day, it will open a gateway for legal propaganda in the name of pushing a positive narrative that paints the country in good standing.

The mandate of local media is to provide people with a wide variety of subjects on the state of affairs in the country—the good, poor, and ugly reality—as long as it is impartial enough for the viewer to make an objective decision. However, once the bill becomes law, the media, especially state media, will align itself with its provisions. For the average viewer, this means that what they see on state television is dictated by the top individual who determines what constitutes false information, and patriotic or unpatriotic behaviour. This restricts the material broadcasted to what is beneficial to this top individual's cause. If incidents of human rights abuses are not favourable to the determiner's cause, state media will not disclose such material to common people due to its "unpatriotic" nature, thereby distorting facts for audiences in order to push a one-sided, "positive," partisan agenda.

THE LOGAN ACT

Despite the bill’s inconsistencies with the Constitution, politicians are still advocating for its promulgation. The United States of America’s Logan Act of 1799, once described as an “archaic superfluous law that has clearly shown its only utility is in leveraging political opponents via selective prosecutions,” is being used to justify Zimbabwe’s need for a similar Patriot Act. However, owing to its inconsistencies with the free speech standards enshrined in the United States Constitution’s First Amendment, the Logan Act has long been dormant in the US. Its repeal was tabled in the US Parliament in May 2020 because of its inconsistency with the US`s First Amendment and constant use for politically-motivated abuses.

After considering the Logan Act's unconstitutionality and propensity for political violence, why are we drawing parallels and motivation from a deficient piece of legislation?

Although encouraging patriotism is a noble goal, it should not come at the detriment of citizens' civil liberties, freedom of speech, and freedom to demonstrate; it should also not shrink civic space or encroach on the Constitutional ideals that the nation stands for—namely, human rights, liberty, and transparent and responsive government.

Sicelo is a final year LLB student at the University of South Africa with a passion for International Humanitarian Law, International Human Rights Law, social justice activism and child welfare. His aspiration is to be a UN Human Rights Officer or UN Child Protection Officer.

LinkedIn