CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS

Division C: Defences and Mitigating Factors Relating to Unlawfulness

PART XVIII
OBEDIENCE TO ORDERS

267 Interpretation in Part XVIII of Chapter XIV
In this Part—
“active operations” means—
(a) active service during any war in which Zimbabwe is engaged; or
(b) counterinsurgency operations; or
(c) the suppression of a riot or public disturbance or public violence; or
(d) the prevention of a disturbance within or escape from a prison;
“disciplined force” means—
(a) the Defence Forces; or
(b) the Police Force; or
(c) the Prison Service; or
(d) any other force organised by the State which has as its sole or main object the preservation of public security and of law and order in Zimbabwe;
“lawful order” means any command, direction or order—
(a) of a routine, permanent or continuing nature that is properly made for any disciplined force by or under any enactment or in terms of any authority given by or under any enactment; or
(b) given on a particular occasion or for a particular purpose by a member of rank of a disciplined force within the ordinary and lawful scope of that member’s authority;
“member”, in relation to a disciplined force, includes a person who is assisting members of the disciplined force, whether voluntarily or otherwise and whether or not he or she is remunerated for his or her services, and who is subject to orders given by other members of the disciplined force;
“member of rank”, in relation to a disciplined force, means a member in lawful authority over any other member.

268 Requirements for obedience to lawful orders to be complete defence
The fact that a person charged with a crime was obeying a lawful order when the person did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if—
(a) when he or she did or omitted to do the thing he or she was a member of a disciplined force; and
(b) the order was given to him or her by a member of rank of a disciplined force, whether or not that person was a member of the same disciplined force.

269 When obedience to illegal orders affords complete defence
(1) Subject to this section, the fact that a person charged with a crime was obeying an illegal order when the person did or omitted to do anything that is an essential element of the crime shall not be a complete defence to the charge unless the following requirements are satisfied in addition to those specified in paragraphs (a) and (b) of section two hundred and sixty-eight—
(a) when he or she did or omitted to do the thing he or she was a member of a disciplined force engaged on active operations; and
(b) he or she would have been liable, or believed on reasonable grounds that he or she would have been liable, to disciplinary action if he or she had refused to obey the order; and
(c) the order was not so manifestly illegal that a reasonable person in his or her position would have refused to obey it; and
(d) his or her conduct was no more than was necessary to carry out the order.

(2) If the requirements specified in subsection (1) are satisfied, a person shall be entitled to a complete defence to a charge even if he or she realised that the order concerned was illegal.