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Chinyoka on Tuesday: Jacob Ngarivhume might well be a poor ambassador for free speech but his conviction is a travesty

The news that Jacob Ngarivhume had been convicted of the crime of incitement ought not to have surprised anyone: the man seemed to be begging for it. Days before his fate was sealed at the Harare Magistrate’s Court, the man that was on trial for sending out tweets sent out tweets to confirm that he was going to be convicted.

Bizarrely, he even seemed to want to be convicted. His twitter handle, while he was facing charges of “inciting demonstrations” on 31 July 2021, self-identified him as “Convenor of the July 31 protests”.

Of course, there really were no such protests, but the facts seldom get in the way of a good political narrative. In photos of him with his wife taken just before he was being led down to prison, both were smiling. Perhaps, he had made a joke, to comfort her. Perhaps, they were happy at the culmination of a step long hoped for. Only they know.

There is a reason why this man’s conviction for any crime could be, for him, a good thing. He is a person of whom it is said that his profile ticks all the boxes – intelligent, educated, Christian (presumably this is always a good thing no matter what the Christian does, including being a Mbavhassador like Mr Thiefangel, but that’s another story), married, brave.

It was said that he had it all except one: struggle credentials. It is said that those that fund him wanted him to have a badge that could be used to point out that he has suffered for the country: doing a Mandela if you will. Once so burnished, they could contrast him with Chamisa and Mwonzora without being presented with those pictures from 2008.

To this cynical view can be added the evidence that the man seemed to have a ready made defence, which he did not use: that he was not the only person with access to the offending Twitter account.

Hours after his sentencing, Ngarivhume’s account tweeted that those who wanted to follow his journey should go to his political party platform. Now, I know there is a lot of people that will testify to the generosity and human spirit of our prison services but I doubt that that extends to the provision of mobile phones and WIFI services for one to be on Twitter.

This suspicion, that perhaps Ngarivhume wanted to be convicted, that perhaps the whole thing was orchestrated to lead to this very moment so that he could thereby gain his “struggle credentials”, is why it might be hard to feel sorry for the man.

As someone once said recently, this conviction was Ngarivhume’s stigmata. According to a certain university page, “Those who experience stigmata are those who have most fervently wanted it. They want to experience the sufferings of Christ so that they may associate with him and so that their sufferings will benefit others.”

If that be the case, good for him. You cannot feel sorry for someone doing what is for him work; work that be believes will reward him with high office one day.

But, sorry for him we must feel, and then some.

The right emotion to feel about Ngarivhume’s conviction is in fact anger. Anger that 43 years after independence, we have sunk this low, where a person can be sent to prison not for a day or two, but for 4 whole years, for what they have said, not done. Not that even a day would be acceptable, mind you.

Anger that we are quite happy to see a liberation that was won in blood used to persecute the very people that we sacrificed lives to free. For, if an African man cannot say that which he wants to say without losing his liberty, how can he be free?

The constitution guarantees to everyone the right to freedom of expression. Ngaruvhume spoke. The constitution guarantees to everyone the right to freedom of assembly and protest.

When he spoke, Ngarivhume encouraged others to protest. Ngarivhume wanted people to complain about corruption through assembly, protest, sit-in, occupation or demonstration. None of these activities are crimes, they are guaranteed rights in our constitution.

So, I ask again, where is the problem? When I was young, back in Mberengwa, it was fashionable for people to say “muri kurashika papi mu 1 room?” Someone should ask the PG and the Magistrate in question.

In my as yet draft thesis, I have stated that the words ‘assembly’ ‘protest’, ‘sit-in’, ‘occupation’, ‘demonstration’, are used in legal instruments to denote the same thing: the physical presence by people (or in some cases a single person) at a de-fined place, whether public or private, for the purposes of positively expressing an opinion or view.

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It has increasingly come to also include online protest. This defi-nition mirrors the expansive definition in paragraph 1.1 of the African Commis-sion on Human and Peoples’ Rights’ Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 2017, which states that ‘The right to assembly may be exercised in a number of ways, including through demonstrations, protests, meetings, processions, rallies, sit-ins, and funerals, through the use of online platforms, or in any other way people choose.’ We are signatory to this framework.

So, again I ask, where is the problem? Tirikurashika papi? Kanti vele siloywa ngubani?

It is said that Ngarivhume incited people to demonstrate. Fair enough. But it is one thing to allege something, and quite another to convict on the basis of the allegation. The latter requires that the elements of the crime be fulfilled. Were they? Of course not.

For incitement to be a crime, it must be about asking/urging/inducing others to commit a crime. Inciting people to carry out a lawful activity is not a crime. Inciting people to ‘assemble’ ‘protest’, ‘sit-in’, ‘occupy’, or ‘demonstrate’; all legal activities, is therefore not a crime.

Even if those that are so incited go on to commit crimes, the inciter could only be liable for incitement if, in the words they used to corral people to the protest or demonstration, they also asked them to commit crimes.

Put differently, suppose at some point person “X” says “lets all go in to First Street and march against corruption” and person “Y” says “lets all got into First Street and march against corruption and loot the shops of those responsible for corruption.” Suppose people then go march into Harare’s First Street and loot shops. Only person “Y” would be guilty of incitement.

This is so basic one must again ask: where is the problem?

The right to freedom of expression exists for a reason. People should be free to express their views. In a truly free society, people sell their opinions in the market-place of ideas. The ideas that gain a large enough audience drive the market’s policies and dictates, and society benefits. But, when for example Hitler sold his ideas to the German public through controlled speech, his society perished together.

When you restrict the expression of ideas, you control and limit the market, and run the risk of impeding society from growing because some of the best ideas are stifled and never marketed. Even the example of the controlled speech of Germany is illustrative of one thing: after people saw just how bad some ideas might be, their society has emerged from the abyss stronger and better.

In other words, freedom of expression is not the freedom to hear only what we like. As Noam Chomsky has said “Goebbels was in favour of free speech for views he liked. So was Stalin. If you’re really in favour of free speech, then you’re in favour of freedom of speech for precisely the views you despise. Otherwise, you’re not in favour of free speech.”

In fact, so strong is the need to protect free speech that some of humanity’s well known maxims are centred around it. Examples are as follows:

The first principle of a free society is an untrammelled flow of words in an open forum. – Adlai E. Stevenson

Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech. – Benjamin Franklin

When even one [citizen] – who has done nothing wrong – is forced by fear to shut his mind and close his mouth – then all [citizens] are in peril. – Harry S. Truman

I accept that people are going to call me awful things every day, and I will always defend their right to do so. – Barack Obama

I do not agree with what you have to say, but I’ll defend to the death your right to say it. – Evelyn Beatrice Hall (in Friends of Voltaire, 1906)

Many have said that Ngarivhume deserves what he got because he was a fool, asking for demonstrations well knowing how the authorities would react. But, like Woodrow Wilson, I have always been among those who believed that the greatest freedom of speech was the greatest safety, because if a man is a fool, the best thing to do is to encourage him to advertise the fact by speaking.

If someone is truly foolish, if someone says things that we believe society will not want to hear, why stop him, why not let him speak and expose his foolishness? Doesn’t stop-ping him suggest we are afraid others might in fact not think him foolish?

Surely the fact that no-one went to these July 31st protests is the best indication that Ngarivhume’s speech failed. So, why make him a martyr with a conviction for something that any right thinking person knows is not crime?

I might not agree with Ngarivhume’s politics, but he did not commit any crime. Our constitution says he did not commit any crime. And, while there are many that will disagree with me, I hope that they can find one point on which we might all agree. It is this: that as Zimbabweans, we should all be ashamed to live in country where a man can go to prison for four years for a tweet.

Tinomudaishe Chinyoka is a Harare based Advocate