Back to Index
This article participates on the following special index pages:
Treason charges against Munyaradzi Gwisai & others - Index of articles
Monitor - Issue 136
Zimbabwe Lawyers for Human Rights (ZLHR)
March 26, 2012
PDF version (2.76MB)
If you do not have the free Acrobat reader
on your computer, download it from the Adobe website by clicking
They were arrested
for watching footage of the popular Egyptian revolution and put
up for death after
the State charged them with treason.
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.
in a community service sentence.
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
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.
rights lawyer and Zimbabwe
Lawyers for Human Rights member Alec Muchadehama, representing
the six, has launched an appeal against both conviction and sentence.
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.
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.
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."
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.
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.
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.
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."
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.
stated that Magistrate Jarabini failed to say whether or not Shoko/Chitiyo
was credible and whether he believed him and the reasons for believing
failed to give any evidence on the six conspiring to commit public
Muchadehama stated, did not incriminate Gwisai and his co-Accused.
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.
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.
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
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,"
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.
said Magistrate Jarabini failed to distinguish between watching
a video and showing the video.
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.
Visit the ZLHR
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.