Online Reporter
Trust Maanda
Legal Position
THE law criminalises disorderly conduct in a public place.
Section 41 of the Criminal Law [Codification and Reform] Act [Chapter 9:23] is one of the most common charges at every magistrates’ court in Zimbabwe.
It is often called “disorderly” or “public disorder”.
It reads: Any person who, in a public place –
(a) intentionally engages in disorderly or riotous conduct; or
(b) uses threatening, abusive or insulting words or behaves in a threatening, abusive or insulting manner, intending to provoke a breach of the peace or realising that there is a real risk or possibility that a breach of the peace may be provoked; shall be guilty of disorderly conduct in a public place and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.
The first thing the State must prove is that the conduct happened in a public place. If it did not, Section 41 does not apply.
“Public place” is defined as any thoroughfare, building, open space or other place of any description to which the public or any section of the public have access, whether on payment or otherwise and whether or not the right of admission thereto is reserved.
It does not include a private house, or a private closed office. An office that is not open to the public is not a public place for purposes of Section 41. The State must lead evidence of the place.
The other element of the crime is the conduct.
The conduct must be disorderly or riotous. This is about the act itself. Disorderly means conduct that is unruly, that offends public decency, or disturbs public order. It is behaviour that makes a public place disorderly.
Riotous conduct is a serious conduct that is violent, noisy, and tumultuous.
Fighting in a bar or street, shouting and screaming obscenities while drunk in a residential area at night or stripping naked in public or having sexual intercourse in public is disorderly conduct.
Throwing stones, bottles at people or cars in the street, refusing to leave a public place after being lawfully ordered to, and causing a scene, are examples of disorderly conduct. The key word is intentionally. You must mean to engage in that conduct.
Section 41(b) – speaks about threatening, abusive or insulting words or behaviour.
This is the most used part. It has two components.
Threatening and insulting are the words. Threatening words or actions make someone fear violence.
“I will beat you up”, “I will kill you today”, raising a clenched fist, holding a brick as if to throw it.
Abusive words are harsh, extremely offensive language aimed at degrading. Repeatedly shouting vulgarities at someone.
Insulting is use of language that demeans. Calling someone “imbwa”, “bastard”, “thief” in public is insulting. But context matters. The test is objective. The question should be: would a reasonable person find those words threatening, abusive or insulting?
The conduct must be with an intention to provoke a breach of the peace OR realising there is a real risk. This is the mental element and it is what protects freedom of speech.
A breach of the peace does not mean someone is annoyed. It means violence or threatened violence, a disturbance of public peace where people may fight.
The State must prove that the accused either:
1. Intended to make people fight or cause violence, OR
2. Realised that there was a real risk or possibility that his words or behaviour could cause a breach of the peace, but went ahead anyway.
This is crucial. Mere shouting out of frustration is not enough.
The State must prove that the accused realised his shouting could cause violence.
Disorderly conduct is not a catch-all provision for punishing bad manners. The conduct must genuinely disturb public order.”
Peaceful protest protected by Section 59 of the Constitution is not disorderly conduct, but if it turns violent, it becomes disorderly.
Insult laws are only constitutional if they require intent to provoke breach of peace. The same logic applies to Section 41(b).
For Section 41, ask three questions: Was it in a public place? Was it disorderly, riotous or threatening, abusive or insulting? Did the accused intend or foresee a breach of the peace? If any answer is no, there is no crime.
The law was meant to protect public peace.
Next time you act, ask yourself if your conduct is not in breach of the law in that it disturbs public order and peace.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
