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Legal Monitor - Issue 136
Zimbabwe Lawyers for Human Rights (ZLHR)
March 26, 2012

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Gwisai fights back

They were arrested for watching footage of the popular Egyptian revolution and put up for death after the State charged them with treason.

Realising how weak its case was, the State reduced the charges against International Socialist Organisation (ISO) leader and University of Zimbabwe law lecturer Munyaradzi Gwisai, and five other social justice and human rights activists to conspiracy to commit public violence, alternatively inciting public violence or participating in a gathering with intent to promote public violence, breaches of peace and bigotry.

This resulted in a community service sentence.

The conviction of the activists, who have become popularly known as the "Zim Six" sent outrage, as people locally and internationally rallied behind them. Multitudes thronged the courts during the trial in a strong show of solidarity. The activists have launched a fight back.

What began as an amazing arrest in February last year and spilled into an equally dramatic trial and conviction is not about to end just yet.

Prominent human rights lawyer and Zimbabwe Lawyers for Human Rights member Alec Muchadehama, representing the six, has launched an appeal against both conviction and sentence.

Pushing for a jail term, prosecutor Edmore Nyazamba had told the court that a non-custodial sentence for the six "would be a ridicule" to the justice delivery system.

But the support Gwisai, Hopewell Gumbo, Tafadzwa Antonater Choto, Tatenda Mombeyarara, Eddson Chakuma and Welcome Zimuto have received as well as their determination to fight to clear their names through a High Court appeal filed last week, show that the real "ridicule" could have been to charge the six, let alone convict them.

From the start, the arrest and charges have been described by lawyers as politically motivated and lacking in evidence.

In the appeal filed on Thursday, Muchadehama lays this bare.

"The law used to charge the six is so repressive that it has no place in a democracy," Muchadehama stated in the appeal.

The six were convicted under the Criminal Law (Codification and Reform) Act and sentenced to pay a fine of $500 or face 10 months imprisonment.

Another 12 months imprisonment was set aside on condition that they are not convicted on public violence charges for the next five years.

Magistrate Kudakwashe Jarabini suspended another 12 months on condition that the accused persons perform 420 hours of community service. Muchadehama stated in the appeal that section 188 of the law used to convict the six "is too broad and wide and couched in such general terms as to be unconstitutional."

"Section 188 of the Act is unconstitutional and cannot reasonably be expected in a democratic society. It is in contravention of the Declaration of Rights in the Constitution. At the hearing of the appeal, the appellants will ask the High Court to strike down Section 188 of the Act by reason of it being unconstitutional and in violation of the Declaration of Rights," stated the award winning human rights lawyer.

The role of a Central Intelligence Organisation (CIO) operative whose real identity was queried by Muchadehama during the trial also comes under check.

He identified himself as Jonathan Shoko, a police detective who attended the meeting undercover and turned out to be the State's second witness. Muchadehama unmasked him during the trial as a CIO operative whose real name was Rodwell Chitiyo, rendering his evidence suspect.

During trial, Muchadehama produced high school records and photos to prove that Jonathan Shoko was a fake identity adopted by Chitiyo, whose real job was being a State spy.

In the appeal, Muchadehama argued that Magistrate Jarabini "seriously erred" in his treatment of Shoko/Chitiyo as a witness.

"The Court shied away from deciding whether or not 2nd witness was Jonathan Shoko or Rodwell Chitiyo. The Court erred in saying that the identity was not material to the case," stated Muchadehama.

He added: "The Court erred in holding that it was the Accused's duty to lead evidence from the Registrar-General's Office to prove the 2nd witness' identity. Copies of the 2nd witness' identity documents were filed of record by consent, the Court accepted them and so were various internet extracts and photograph."

"The Court also erred in holding that the witness' identity had no bearing on his testimony. It also erred in that the question of identity had a bearing on the question of credibility of the witness and consequently on the State case. It is submitted that the 2nd witness' identity was put in issue to show that he was a dishonest witness," stated Muchadehama, adding that the Court was wrong in relying on the evidence of a "dishonest" witness.

Muchadehama stated that Magistrate Jarabini failed to say whether or not Shoko/Chitiyo was credible and whether he believed him and the reasons for believing him.

Further, Shoko/Chitiyo failed to give any evidence on the six conspiring to commit public violence.

His evidence, Muchadehama stated, did not incriminate Gwisai and his co-Accused.

"What the witness attempted to do was to interpret his own perceptions of the video, give an opinion on the same and impute this to the Appellants. Unfortunately the Court fell in the same error," stated Muchadehama, adding that Magistrate Jarabini "appears to have worn the 2nd witness' shoes" in his reasoning.

Convicting Gwisai, Choto, Mombeyarara, Chakuma, Gumbo and Zimuto, Magistrate Jarabini described the group's watching of the video as "pathetic and to imagine what was happening in the video happening in Zimbabwe . . . could have been disturbing."

In the appeal, Muchadehama tears into the Magistrate's reasoning.

"It is submitted that the Magistrate was giving a subjective view of the video. Even in light of the 2nd witness' evidence that the video was shown as a time killer, the Magistrate held that the video was shown to arouse feelings of hostility. In fact, the Magistrate removed the judicial cloak, jumped into the arena and started behaving like the 2nd witness who would interpret the video and impute his subjective view to the Appellants. The Court failed to consider that the video contained news clips about stale news of the Egyptian events," argued Muchadehama.

"Why would people's feelings suddenly get aroused on that day, when they had seen the news before?" queried Muchadehama, adding that Magistrate Jarabini convicted the six for watching the video.

Muchadehama said Magistrate Jarabini failed to distinguish between watching a video and showing the video.

"The Court instead said the video was played to arouse feelings of hostility. The Court failed to show whose feelings were meant to be aroused. Is it the Appellants' or the audience's? The emphasis on the video by the Magistrate was therefore misplaced and untoward hence the submission that the Court was taking a subjective view of the facts and had descended into the arena," argued Muchadehama.

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