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Big Saturday Read: Zimbabwe - a case of political persecution

Hopewell Chin’ono was arrested at his home on 20 July 2020. Police officers broke into his house to gain entry, shattering the glass panels at the front. A live video stream of his arrest showed disturbing aggression and hostility of the police officers. It was as if they were apprehending a mass murderer. But Chin’ono is a journalist and film-maker. He won the CNN African Journalist of the Year in 2008 for his film, Pain in My Heart.

The charge against Chin’ono is that of alleged incitement to commit public violence under Zimbabwe’s Criminal Code. The alternative charge, under the same Criminal Code, is that of alleged incitement to participate in a gathering with intent to promote public violence. In short, Chin’ono is being accused of inciting public violence.

These offences were allegedly committed through tweets which Chin’ono posted on the social media microblogging site, Twitter. He is, therefore, another statistic in a list of individuals around the world who have been persecuted by State authorities for expressing themselves on social media. It’s yet another case of how States police digital citizenship, with ominous implications for the rest of society.

Bail Denied at the Magistrates Court

Following his arrest, Chin’ono applied for bail at the Magistrates Court. Chin’ono is represented by Beatrice Mtetwa, Doug Coltart and Gift Mtisi of ZLHR. Bail is a constitutional right under the Zimbabwean Constitution, and although it is a qualified right, it can only be restricted in exceptional circumstances. Although he was arrested on 20 July, it was not until four days later, on 24 July that the magistrate issued his decision denying him bail. He appealed against the magistrate’s decision. All appeals in such cases go to the High Court.

The appeal was only heard on 3 August 2020, after some delays caused by the State. The judge gave his decision on 6 August 2020, upholding the Magistrate’s decision and therefore denying Chin’ono’s bid for freedom.

The wheels of justice move at a painfully slow pace at the best of times, getting worse in “political” cases. A bail case should ideally be dealt with expeditiously. After all, it’s the freedom of a pre-trial accused at stake and the law is generally tilted in favour of freedom before conviction. But when you face an accusation in a “political” case, the “rules of the game” shift dramatically and pre-trial detention becomes the order of the day. Whereas the general rule in every case is that an accused is innocent until they are proven guilty, in “political” cases, they are treated as if they are guilty until they prove their innocence.

On appeal, the judge had to decide whether the magistrate erred when he rejected the bail application. The judge had to assess whether there was a misdirection of law or fact by the magistrate. The burden of proof was on the accused to show that the magistrate had misdirected himself. In this case, Justice Chitapi held that the magistrate had made a proper and reasonable decision when he rejected Chin’ono’s bail application.

The rejection of the appeal meant Chin’ono remained in remand prison. At the time of writing reports indicated that he and another pre-trial detainee, Jacob Ngarivhume, had been transferred to Chikurubi Maximum Security Prison. The two men have become the primary symbols of political persecution by the authoritarian Zimbabwean state. They are detainees of conscience.

What is happening is not without precedent. Many were jailed in the same manner in the 1980s during the crackdown against ZAPU which led to Gukurahundi. War heroes like Dumiso Dabengwa and Lookout Masuku were among hundreds of ZAPU leaders who spent years in detention without trial. The enforcers of those measures are the men who are now in charge of Zimbabwe and old habits die hard.

On what ground was bail denied?

Of all the grounds that the State advanced against bail, only only one was accepted by the magistrate and endorsed by the judge at the High Court. It was stated as follows: “Accused has not yet accomplished his mission as the protests are penciled for 31 July 2020 which is a date to materialise. So his release may enable him to continue with his campaign”.

In other words, the magistrate accepted the State’s argument that Chin’ono was on a “mission” which he was yet to “accomplish” and that “the protests” would take place on 31 July 2020. He dismissed all the other grounds. This included the argument advanced by the State that Chin’ono should not be given bail because it had a strong case against him. The other ground was that the accused was likely to interfere with witnesses and that he was facing a charge which, if proved, could lead to a custodial sentence.

Since the magistrate had dismissed these grounds, the judge said he didn’t have to address them. This allowed the judge to avoid key arguments advanced by Chin’ono’s lawyers, which challenged the strength of the State’s case. It is normal for the accused to challenge the weaknesses of the State case in efforts to add weight against pre-trial detention.

However, for Justice Chitapi, the strength or weakness of the State case against Chin’ono was not an issue because the magistrate had already dismissed it as a ground for refusing bail. On this reasoning, even if Chin’ono’s lawyers had good arguments showing that the State had a weak case, the judge regarded them as irrelevant to the appeal. But ironically, the ground upon which the magistrate relied to deny Chin’ono bail is at the heart of the State case against him. This means arguments against the strength of the State should have been given greater regard by the judge than he did.

If the magistrate rejected the State’s argument that it had a strong case against Chin’ono, how then did he go on to accept the factual allegation that the “accused has not yet accomplished his mission as the protests are penciled for 31 July …”? This is because it is Chin’ono’s alleged “mission” that is at the core of the alleged offence of incitement of public violence. The strength or weakness of the State’s case hinges on the interpretation of the tweets that allegedly incited public violence. The argument that Chin’ono was on a mission to incite public violence and the strength of the State case are essentially the same ground.

However, while the magistrate believed the State’s argument that Chin’ono was on a “mission” that was bad enough that he had to be kept in jail until 31 July, he did not believe that the State had a strong case which was compelling enough to deny him bail. The apparent contradiction is perplexing.

At the High Court, Justice Chitapi did not see this apparent contradiction. He accepted the magistrate’s view that the ground that the State had a strong case “did not hold any water”. But he accepted the view that the accused was on a mission to incite public violence. If the State’s case is not strong enough, as the magistrate and judge admitted by rejecting the State’s argument, how did both the magistrate and the judge place so much weight on the allegations concerning Chin’ono’s alleged “mission” to incite public violence? The State’s case can’t be strong and weak or believable and unbelievable at the same time.

What were the tweets in contention?

Since the charges against Chin’ono are based on social media activities, it’s important to set out the relevant tweets.

First Tweet

“Zimbabweans have been complaining about the LOOTING of public funds. They have been blaming progressive leaders of doing nothing about it.

@jngarivhume & many others to come have put their hands up & said they will lead anti-looting demo on 31 July. Spread the word. RETWEET”

Second Tweet

“The organiser of the July31 protest says after meeting with and consulting many people, the consensus is that ZanupfMustGo

That is the power of engaging with others! So from now on he says it will be the July31 ZanupfMustGo protest”

Third Tweet

“Zimbabwe will NEVER be freed from these LOOTERS though elections, it is a waste of time.

They will rig the elections, and if you go to court, their judiciary LOOTING partners will be waiting for you.”

Fourth Tweet

“Daily citizens are dying quietly in their homes without healthcare or clean drinking water, due to LOOTING & corruption.”

Fifth Tweet

“Reforms will transform their quality of life and stop the LOOTING.

Yet Mnangagwa refuses.

Change will come by any means.”

Essentially, Justice Chitapi rejected Chin’ono’s bail appeal because he agreed with the magistrate’s conclusion that these tweets incited public violence. He reasoned that the magistrate’s decision to refuse bail was to protect the public from engaging in “unsanctioned and non-peaceful demonstrations which had the potential to turn violent”. The judge said this was consistent with “logic and common sense”. He concluded that the magistrate’s decision was therefore not irrational.

However, it is arguable that the conclusion that these tweets incited public violence are based on illogical fallacies. This is so, whether the tweets are considered individually or cumulatively. The interpretation that the tweets incited violence does not necessarily follow from the tweets.

Nevertheless, the judge accepted the magistrate’s reasoning that “the mood and intention of [Chin’ono] in composing and broadcasting the tweets was to incite protests which were not peaceful”. How the magistrate reached a conclusion on the “mood and intention” of Chin’ono in “composing and broadcasting” the tweets is far from clear. There is nothing in these tweets which suggests that Chin’ono advocated for “protests which were not peaceful” as the magistrate and judge concluded.

The judge also agreed with the magistrate’s view that Chin’ono’s tweets “advocated for change through violence as a weapon because he discounted the elections route on the basis that elections would be rigged and that the judiciary was comprised of co-looters who would endorse rigged elections”. This reasoning is flawed. The magistrate’s finding that Chin’ono “advocated for change through violence” is not based on evidence.

Moreover, the magistrate’s reasoning that because Chin’ono “discounted the elections route” therefore he advocated for violence is based on an “either/or” logical fallacy. For the magistrate and the judge who accepted this reasoning, the only other means of public expression of political choices apart from elections is violence. Therefore, according to the judicial officers, if Chin’ono has a low opinion of elections, he advocates for violence.

This is a false and lazy dichotomy drawn by the judicial officers. The relationship between the government and the people is more nuanced than the magistrate and the judge presented in their assessment of the tweet. Citizens have a right to express themselves through peaceful protests and this is guaranteed by the Constitution. Many Zimbabweans are frustrated with elections and believe they don’t work. Many also think the judiciary is compromised especially when they see evidence of them receiving extra gifts from members of the regime. They may be right or wrong but it’s their opinion. It’s not incitement of public violence to express that opinion.

In any event, the tweets were a mixture of reportage and expressions of opinion, both of which are protected under section 61 of the Constitution. As a citizen, Chin’ono is entitled to share his thoughts and opinions, including that elections don’t work or that political elites are looting. Indeed, sharing opinions is what millions of people do on Twitter. If social media users were to be prosecuted for the opinions they express concerning the government, the justice system would be clogged for many years.

As a journalist, Chin’ono is within his rights to report matters of public interest, which is what some of his tweets do when he is not expressing his opinion. He was reporting on what organisers of the July 31 demonstrations were planning, as did many other journalists. That cannot reasonably be regarded as advocating for or inciting public violence.

Anti-corruption message

If anything, the predominant message in Chin’ono’s tweets is anti-corruption. The words “looting” or “looters” appear 4 times in capital letters in the 5 tweets, highlighting the major theme of his tweets. The State also selected 5 tweets but if the magistrate and judge found it preferable to read all of them together, then they might as well have gone the full mile and read the entire timeline of the @daddyhope account on Twitter. This would offer a better appreciation of the context in which these 5 tweets were composed and posted.

If they had done so, they would have found that their reading of those 5 tweets is not only selective and biased but that it is severely out of context and embarrassing. For the last few months, Chin’ono has, along with other journalists and commentators, led a relentless investigation into public sector corruption. He has made use of social media to great effect, highlighting the debilitating effects of corruption.

Indeed, it is partly that campaign which exposed corruption in the procurement of COVID19 provisions and resulted in the sacking of former Minister of Health, Dr Obadiah Sibanda and the arrest of Delish Nguwaya of Drax International. It was through Chin’ono’s efforts that Nguwaya’s associations with members of the Mnangagwa family were revealed. A more nuanced analysis of the tweets by the magistrate would have revealed that the predominant message is a campaign to stop public sector corruption which has become systemic because it affects many layers and institutions of the State.

Chin’ono’s expose really angered some powerful people. If there was any doubt before that powerful people, the people at the very top were involved in the DRAX scandal, there is none now. The heavy handed response shows that they are angry that they were caught with their hands in the cookie jar.Hopewell expose really angered some powerful people. If there was any doubt before that powerful people, the people at the very top were involved in the DRAX scandal, there is none now. The heavy-handed response shows that they are angry that they were caught with their hands in the cookie jar.

The tragedy in all this is that the individuals involved in the DRAX scandal walk free having gone through the same judicial system that Chin’ono is going through now. He’s at Chikurubi. They are sleeping comfortably in their beds.

Maybe the judicial officers were not amused by Chin’ono’s opinion in one of his tweets that “if you go to court, their judiciary LOOTING partners will be waiting for you” because it was a negative opinion on the institution they represent. By a twist of fate, Chin’ono’s liberty was literally in the hands of the judiciary. Would they overlook the opinion he had expressed about “judiciary LOOTING partners”, particularly where, as in this case, the judge was a beneficiary in the RBZ Farm Mechanisation Scandal which Chin’ono commented on? Was the judge not conflicted in light of this situation?

The judicial irritation over alleged attacks is evident in another part of the judgment where Justice Chitapi warns Chin’ono’s lawyers not to join him in his “attacks” of the judiciary. The judge felt that the lawyers had attacked the magistrate when they wrote in a letter to the Clerk of Court that he had “expectedly denied our client bail”. The judge wrote, “The writer of the letter is therefore reminded … of the need to avoid becoming one with one’s client as in this case in attacking the judiciary”. This line betrays the judge’s view and discomfort at alleged “attacks on the judiciary” by Chin’ono and his lawyers.

How much these alleged “attacks on the judiciary” impacted the judicial decision-making process remains an open question.

But July 31 has come and gone?

By the time the High Court judgment was issued on 6 August, 31 July had already passed. The ground upon which the magistrate had refused to give bail no longer existed. The appeal took so long to be heard because of delays which had nothing to do with the accused. First, the record was not sent in time from the magistrates court to the High Court. Second, when it arrived, the State sought a postponement and the judge gave them 5 days. When the appeal was finally heard, the judge reserved judgment for 4 days. It is so easy for those in the system because they can justify it by reference to rules. The accused are at their mercy. It’s a tragic failure of the justice system.

All this time, the accused was in remand prison. Bail is supposed to be constitutionally protected right. True, it is a qualified right. But denial of bail should be in exceptional circumstances. There must be compelling reasons to restrict the right to bail. But the way in which it was handled in this case left the impression that bail is the exception, not the rule.

Therefore, even though it was clear that the date upon which the denial of bail was based had passed, the High Court judge kept the accused in jail. The judge said it was outside the appeal record and therefore he could not take account if it. Anything that happened after the appeal is beyond his jurisdiction as an appeal judge. This does not make much sense to the lay person and it is certainly inconsistent with logic and common sense, but this is why ordinary people often have a dim view of the law. What this means in practice is that Chin’ono must now make a new bail application at the Magistrates Court citing changed circumstances.

In a justice system which operates according to normal rules of impartiality and fair play, Chin’ono should expect to get bail because the one ground which the courts had accepted to deny him bail the first time expired on 31 July. But Zimbabwe is a complicated space especially in political cases. There was never any need to keep Chin’ono in remand prison for so long except as a form of pre-trial punishment. This is why the courts dismissed the ground that the State had a strong case. That’s because it doesn’t have one.

No refuge for the persecuted

The case has only brought more embarrassment to Zimbabwe’s judicial system. But it also has major implications for social media users in the country. It is not the first time that someone has been arrested for social media activities. Even this week, a young woman, Hither Mpambwa was arrested and detained in Kariba for a post on a WhatsApp group. She is accused of insulting the President. In the BSR on the law of presidential insults we chronicled many cases in which citizens were arrested and detained for allegedly insulting the President.

The Chin’ono case has a higher profile. Chin’ono is an award-winning journalist, with associations at top institutions of learning, such as Harvard. It is meant to send a strong authoritarian message to all social media users. The aim is to intimidate and force citizens into submission. It is designed to get people to police themselves on social media. This includes censoring not only what others say on social media but also what they say. It represents a massive curtailing of free speech. The regime knows it has little power over social media, but jailing a few prominent users will serve as an example to others. That way it controls social media activity by having the power of arrest as the sword of Damocles hanging over each user’s head.

"Agreeable history"

This week, the regime announced that it will be crafting a law to criminalise what it calls “campaigning against one’s country”. This vague statement is an ominous warning to Zimbabweans that the authoritarian regime is strengthening its apparatus of control and repression. It’s another measure to clamp down on free speech. The regime also wants to control historical narratives. It resolved that “historians will be resourced to document storylines that reframe and capture agreeable narratives about Zimbabwe's history”.

The notion of “agreeable history” is, of course, partisan nonsense. No self-respecting historian would submit themselves to write so-called “agreeable narratives” of history which are likely to whitewash the atrocious activities of the regime.This is a regime that is keen to re-write history in its favour.

But all this shows a regime that has a pathological desire to control the flow of information and citizens’ right to free speech.

In a normal democracy, if a person is arrested they can expect to go to a court of law, where their rights will be determined. If they are being unlawfully persecuted, they can be confident that they will find protection in the courts. This is because courts are expected to be independent and fair-minded. They apply the rule of law and ensure that individual rights are safeguarded. The polar opposite happens in an authoritarian environment. The persecuted have no place of refuge in their own country. The only way to avoid jail is to flee.

WaMagaisa

wamagaisa@tutanota.com

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