Job Sikhala vs The State

### Preamble
1
HMA 36-19
B 156-19
JOB SIKHALA
vs
THE STATE
HIGH COURT OF ZIMBABWE
WAMAMBO J.
MASVINGO, 15TH July, and 1ST August, 2019
Bail Application
Muchadehama and J. Bhamu for the applicant
Muhwandavaka, T. Chikwati and E. Chavarika for the respondent
WAMAMBO J: Applicant filed a bail application on 11 July 2019. The State filed its response on 12 July, 2019 opposing the application. I heard the matter on 15 July 2019. The State requested to be heard first averring that it had a proposal to make. The applicant was not opposed to this request. The State announced that it was no longer opposed to the granting of bail. The suggestion was that the draft order was to be expanded to accommodate three more conditions namely;
that applicant should not interfere with evidence and witnesses
applicant shall surrender his passport to the Clerk of Court, Bikita Magistrates Court, and
that applicant should not address any political gathering until this matter is finalised
There was a further proposal to raise the quantum of the bail to RTGs50 000.00. After some questions directed to the State counsel on the quantum she suggested a lesser bail amount of RTGs10 000.00. The applicant, through Mr Muchadehama were of the considered view that the amount of RTGs1 000.00 that they had proposed in their draft order should be raised to RTGs5 000.00. Mr Muchadehama was not opposed to the other conditions suggested by the State, save for the condition barring applicant from addressing political gatherings amounted to more punishment. He was of the view the suggested condition was superfluous and artificial. He suggested that if applicant were to address a political gathering in future and in the process commit an offence he would permissibly be charged with another charge or other charges. He averred that the suggested condition was akin to imposing a condition that an accused facing a theft charge should not steal in future.
Mr Muchadehama also found solace in the Constitution. He cited sections 61 and 67 of the Constitution and averred that these rights of applicant should not be curtailed.
Section 61 of the Constitution reads in part as follows:-
61. Freedom of expression and freedom of the media
Every person has the right to freedom of expression, which includes
freedom to seek, receive and communicate ideas and other information
freedom of artistic expression and scientific research and creativity, and
academic freedom
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Section 67 of the Constitution reads in part as follows:-

“67. 	Political rights

Every Zimbabwean citizen has the right –

to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and

to make political choices freely

Subject to this Constitution, every Zimbabwean citizen has the right –

to form, to join and to participate in the activities of a political party or organisation of their choice

to campaign freely and peacefully for a political party or cause

to participate in peaceful political activity, and

to participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.”

Ms Muhwandavaka, for the State was of the view that the suggested amount of RTGs5 000.00 as the bail quantum was too low. She averred that people could respond to statements allegedly uttered by applicant with the result that people’s lives could be endangered as has apparently happened in the past. She averred that the right to being released on bail is not absolute. She went further to submit that upon being granted bail some rights of an accused may be taken from him.

Mr Muchadehama, for the applicant cited the case of S v Tsvangrai & 2 Others HH 92/03 which he referred to in some detail.

In the exercise of my discretion I was not swayed that in the circumstances of this case I should impose a condition that accused should not address any political gatherings. I was also of the considered position that bail in the sum of RTGs5 000.00 would be in keeping with the full circumstances of this case. These circumstances include the offence applicant faces and the possible sentence he faces if he were to be convicted, the applicant’s standing and means as submitted before me.

Before adverting to the reasons for the decision I took, I will lay out the offence accused faces and what the State alleges he did in committing this offence.

The Request for Remand Form (Form 242) spells out that applicant faces the offence of subverting constitutional government as defined in section 22(2)(a)(i) of the Criminal Law (Codification and Reform) Act, [Cap 9:23].

It is of importance to spell out the whole of section 22. It reads as follows: -

22 	Subverting constitutional government

(1) 	In this section

“coercing” means constraining, compelling or restraining by -

physical force or violence or, if accompanied by physical force or violence or the threat thereof, boycott, civil disobedience or resistance to any law, whether such resistance is active or passive; or

(b) 	threats to apply or employ any of the means described in paragraph (a);

“unconstitutional means” means any process which is not a process provided for in the Constitution and the law.

(2) 	Any person who, whether inside or outside Zimbabwe

(a) 	organises or sets up, or advocates, urges or suggests the organisation or setting up of, any group or body with a view to that group or body -

overthrowing or attempting to overthrow the Government by unconstitutional means; or

taking over or attempting to take over the Government by unconstitutional means or usurping the functions of the Government; or

coercing or attempting to coerce the Government; or

(b) 	supports or assists any group or body in doing or attempting to do any of the things described in subparagraph (i), (ii) or (iii) of paragraph (a);

shall be guilty of subverting constitutional government and liable to imprisonment for a period not exceeding twenty years without the option of a fine.”

The allegations are quoted as follows: -

“On 6 July 2019, during the period between 1300 hours and 1600 hours and at Mandadzoka Primary School ground, Bikita accused person who is a member of the House of Assembly for Zengeza West Constituency attended an MDC Alliance, Ward 31, Bikita East Constituency, by elections campaign rally which was attended by several MDC – Alliance supporters.

Whilst addressing the gathering of MDC Alliance supporters at the said campaign meeting the accused advocated for the overthrowing of the constitutionally elected Government of Zimbabwe led by His Excellency Comrade Emmerson Dambudzo Mnangagwa through unconstitutional means. He threatened that he would overthrow the constitutionally elected Government of Zimbabwe before the year 2023 in support of what had already been stated during the same rally by Chibaya. Accused person uttered the following words “panyaya dzekuti tisungure nyika ino. We are a committed leadership that will give ZANU PF headaches and va Chibaya was not lying or joking. The war and fight we are going to take to the door steps of Emmerson Mnangagwa. We are going to overthrow him before 2023. That is not a joke. “Hatingagone kuita hurumende inoswera ichityityisidzira vanhu mudzimba dzavo kuti vaite zvido zvavo iyezvino ndanzwa when I ---------- “translated to English”. On the issue of liberating this nation we are a committed leadership that will give ZANU PF headaches and Mr Chibaya was not lying or joking. The war and fight we are going to take to the doorstep of Emmerson Mnangagwa. We are going to overthrow him before 2023. That is not a joke. We can’t have a government which always threatens people in their houses in order to compel them to do what they want. Now I have heard, when I ………” when the accused uttered these words, he was advocating or urging MDC Alliance supporters to put pressure on the government through the use of illegitimate means to overthrow the government led by his Excellency Comrade E.D. Mnangagwa.”

The quoted portion appearing above is contained in an Annexure to the Form 242.

The Request for Remand Form (Form 242) also alleges that the video wherein applicant uttered the words (as more fully appears in the Annexure to the Form 242) went viral on twitter amongst other social media platforms which platforms are generally accessible to the generality of Zimbabwean citizens.

In the State versus Morgan Tsvangirai and 2 Others (supra) the three accused in that matter were undergoing a treason trial. The State applied for the variation of their bail conditions. The State sought the inclusion of additional bail conditions. That –

each accused shall refrain from inciting the public to engage in unlawful activities and illegal demonstrations, and

that each accused shall refrain from making inflammatory statements likely to lead to public disorder

GARWE JP (as he then was) dismissed the application. At pages 6 – 7 the learned Judge said;

“There is a further matter which calls for comment. It is clear from the submissions made by the State that the intention in seeking the alteration is to prevent the accuseds from conducting themselves unlawfully. I am no persuaded that the State can seek to do so through conditions added to bail. In effect what the condition would be saying is that the accused should not act unlawfully. This is superfluous and in my view unnecessary. Such a condition would be stating the obvious. As remarked by VAN JYL AJP in S v Budlender and Another 1978 (1) SA 264, it is not a condition which can be said to induce an accused to stand trial or to prevent the occurrence of or persistence in unlawful conduct. The Judge in my view correctly summarised the position when he said: -

“In fact all it says is that the appellant must not act unlawfully. The law says that and there is no need to say it again. And if he does act unlawfully, and is arrested on that account, he will lose his freedom. And, if he has lost his freedom and wants to regain it, he will have to ask for bail again. And then of course, that application will be judged in the light of the new offence and in the light of the offence on which he is still awaiting trial. These are circumstances that can be dealt with if and when they occur. Certainly not now.” (at page 271)”

The learned Judge proceeded at page 7 as follows; -

“I am satisfied that the State has followed the wrong procedure in the instant case. The State may well have a case for wanting some conditions to be imposed.”

In S v Tsvangirai 2003 (1) ZLR 650 (H) MAVHANGIRA J. (as she then was) granted bail to the applicant and imposed among other conditions the following conditions: -

“3.	The applicant does not make any statement which –

advocates for the removal of the State President or the Government from office by violence or other unlawful means or

encourages or incites his supporters or other members of the public to try to remove the State President by violence or other unlawful means.”

I am mindful that the applicant in the S v Tsvangirai case (supra) was undergoing a trial where he was charged of treason and that he was alleged to have committed similar or related offences while on bail which is not the case in the instant matter.

There may well be matters where the circumstances call for a condition or conditions that applicant should not address political gatherings or such other related conditions. I am of the view that this is not such a case. I have in my discretion considered that the applicant is a sitting Member of Parliament, who has not been alleged to be facing other similar or related charges. I have further considered bail conditions imposed in similar matters where applicants were facing similar or related charges. In these cases, the condition spelling out that applicant, should not address a political gathering is absent. These are Vikas Mavhudzi v The State HB 55/11,

Peter Gift Mutasa and Japhet Moyo v The State HH 77/19

Kisimusi Dhlamini & 2 Others v The State HH 57/2009

Evan Mawarire v The State HH 67/19

Each case indeed turns on its own facts. I also note that in the above matters the highest amount of bail imposed is $2000.00.

To that end I ordered as follows: -

Applicant be and is hereby admitted to bail on the following conditions;

The Applicant to deposit the sum of RTGs5 000.00 as bail deposit with the Clerk of Court, Bikita Magistrates Court.

The Applicant to reside at Number 569 Mutsanayi Street, St Marys, Chitungwiza until this matter is finalised.

The Applicant to report at St. Marys Police Station once per week on Fridays between the hours of 6.00 am and 6.00 pm until this matter is finalised.

The Applicant surrenders his Passport to the Clerk of Court, Bikita Magistrates Court.

The Applicant not to interfere with State witnesses and investigations.

Mbidzo, Muchadehama and Makoni legal practitioners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners