By Nyashadzashe Ndoro
The State has appealed to the Supreme Court against the acquittal of Zengeza West legislator Job Sikhala who was found not guilty of charges of plotting to topple President Emmerson Mnangagwa by Masvingo High Court Judge Justice Garainesu Mawadze last month.
On February 14, Justice Mawadze granted an application by Sikhala for exception to the charges.
In his founding affidavit, the applicant, who in this case is the Prosecutor General of Zimbabwe appealed against the High Court ruling and cited that the respondent, Job Sikhala wanted to overthrow the government by “unconstitutional” means.
“The applicant herein is the Prosecutor General of Zimbabwe who is the head of the National Prosecuting Authority which in terms of the Constitution, is the institution tasked with the prosecuting of criminal matters before the courts.
“This is an application for leave to appeal to the Supreme Court in terms of Section 44 (6) and (b) of the High Court Act, Chapter 7.06. Applicant seeks leave to appeal against the decision of the high Court which was handed down by his Lordship Mawadze J on the 14th February 2020 under cases numbers HMA 04/20 and CRB 04/20.
“Applicant submits that there are prospects of success on appeal against Mawadza J’s decision. The learned judge erred on both points of law and on the facts on a view which could not reasonably be entertained.
“In upholding the exception of the court a quo ignored the relevant disjunctive elements of the offence in Section 22 (2) (a) of the Criminal Law Codification and reform act (chapter 9:23), these being the words ‘advocated or urged’ when responded uttered the words as spelt out in the charge, to his political party’s supporters advocating and urging them to overthrow President and or government from power through war and fight which connote to violent removal. This obviously entails overthrowing through unconstitutional means,” reads the applicant’s founding affidavit.
Hodzi said the learned judge further misdirected himself on a point of law by not taking into account that, for attempting to overthrow the government it is not an essential element of the offence to show or prove the attitude of the of the audience addressed i.e. whether the audience was responsive or unresponsive to the utterances.
He said the lawful means for the removal of government such as impeachment and resignation did not have to be taken to the President’s doorsteps as uttered by the respondent,“…we are going to take to the doorsteps of ED Mnangagwa.”
“Further, the trial court in upholding the exception did so on a view of the facts which could not reasonably entertained by taking the general definition of the words ‘war and fight’ without contextualising them to imply overthrowing the government through unconstitutional means, the uttered words “…we going to take to the doorsteps of ED Mnangagwa.”
“Implying that they were not going to resort to lawful means in the overthrow. Lawful means for the removal of government such as impeachment and resignation do not necessarily have to be taken to the President’s doorsteps,” further read the applicant’s founding affidavit.
On his micro-blogging Twitter handle prominent journalist Hopewell Chin’ono said Mnangagwa’s regime was pursuing unconstitutionalism.
“This abuse of process by the regime confirms Advocate Thabani Mpofu’s argument; That REAL freedom will not come through negotiations or court battles or the ballot box; But from the streets using the constitutional right to protest whether granted or otherwise!
“This regime NEVER gives up on pursuing unconstitutionalism. They are NOW appealing against the acquittal of Job Sikhala! We are still in the good olden days of Robert Mugabe where the courts are used as an instrument to persecute the opposition! This delegitimises this regime!” Chin’ono said. Nehanda Radio