Finally, Zimbabwe opposition activist Jacob Ngarivhume has been released from jail.
Tendai Ruben Mbofana
This was after languishing behind bars for the past eight months – as part of a three-year sentence in April this year on charges of inciting public violence.
He was convicted by Harare Magistrate Feresi Chakanyuka.
Ngarivhume had posted messages on social media site X (formerly Twitter) urging Zimbabweans to peacefully protest against corruption and poor governance.
Most open and level minded, as well as apolitical, people (both in and out of Zimbabwe) had, from day one, questioned the logic in jailing someone for merely calling for peaceful protest.
Let us remember that, in this country, the right to demonstrate and present petitions, in a peaceful manner, is protected in the Constitution (section 58).
At no time or place did Ngarivhume ever incite anyone to engage in violent acts.
In fact, that is why today, 11th December 2023, he was set free after the High Court quashed both his conviction and sentence.
In their ruling, judges of appeal Pisirayi Kwenda and Fatima Maxwell noted that the State failed to prove a prima facie case against the opposition politician.
That is where we have a huge problem!
How on earth did the Magistrate who convicted Ngarivhume even entertain the prosecution when clearly the State did not have prima facie evidence, in the first place?
Let alone how a guilty verdict was reached!
We need to begin with defining what is meant by prima facie evidence.
This is a term from Latin (prīmā faciē) meaning ‘at first sight’ or ‘based on first impression’.
In simpler English, this can be translated as ‘on the face of it’ – meaning, how something appears on face value or initial sight.
In the legal context, this signifies that upon initial examination of a charge, sufficient corroborating evidence should appear to exist to support a case.
As such, prima facie evidence denotes evidence that, unless rebutted, would be sufficient to prove a particular proposition or fact.
Most legal proceedings require a prima facie case to exist, following which proceedings may then commence to test it and create a ruling.
In the absence of prima facie evidence, a case will be thrown out immediately, without so much as going to trial.
That is why the prosecuting authority needs to ascertain if there is any such evidence, usually brought forward by the police, to determine whether to take the case to court or not.
For instance, if an individual is accused of murder, before anything else, the prosecution has the burden of presenting prima facie evidence of each element of the crime charged against the defendant.
In a murder case, this would include evidence that the victim was, in fact, dead, that the defendant’s act caused the death, and that the defendant acted with malice aforethought.
If no party introduces new evidence, the case stands or falls just by the prima facie evidence or lack thereof, respectively.
In other words, without prima facie evidence, a case can be dismissed without any need for a response by other parties or going to trial.
So, if the High Court judges of appeal noted that the State failed to prove a prima facie case against Ngarivhume – on what grounds did proceedings even commence at the Magistrate Court?
These changes should have been thrown out on the first day, and Ngarivhume set free!
This was common knowledge.
Everyone who followed the opposition activist’s social media posts knew very well that at no time did he incite anyone to engage in violent acts.
Why, then, were the clearly spurious charges even tolerated by the courts – not to mention proceeding to trial, after which actually finding him guilty?
What, in the form of prima facie evidence, did the State produce – when Ngarivhume never posted anything inciting public violence?
There was no prima facie evidence to warrant the presiding magistrate to entrain this case.
What image does this, then, paint about our justice system in Zimbabwe?
I have great respect for our judiciary – nonetheless, such incidents are undeniably not good for their reputation.
Our judiciary needs to be seen as genuinely independent, apolitical, and non-partisan – as defined in section 164 of the Constitution of Zimbabwe.
There is a need to demonstrate, without a shadow of a doubt, that Zimbabwe respects the separation of power.
The three arms of government – the executive, legislature, and judiciary – and their powers and roles are clearly laid out in the country’s Constitution.
It, therefore, becomes most disturbing when an impression is created that there are some in our justice system serving partisan interests.
This inevitably invites accusations of our judiciary being captured by the ruling establishment and abused to settle political scores, specifically against perceived opponents.
That is why terms as ‘weaponization of the law’, or ‘warfare by lawfare’, or ‘persecution by prosecution’ have become commonplace in Zimbabwe.
We have witnessed far too many opposition and human rights activists being arrested and then repeatedly denied their constitutional right to bail (whilst languishing in remand prison).
A good example is opposition official and former legislator Job Sikhala, who has now been incarcerated for over one and a half years.
Then, there are those, although granted bail, their trials continually drag on without seemingly any progress for months or years – yet, in most cases, with the accused eventually acquitted.
A case in point being, amongst many others, Joanna Mamonbe, Cecilia Chinembiri, and Netsai Marova – who were accused for lying about their abduction in May 2020 – yet subsequent acquitted in July 2023 after a prolonged trial.
This places a torturous burden on these people – be it emotional or psychological – as they have to endure the stress of unending trials.
Furthermore, some have been unable to undertake their business activities or seek critical medical attention outside the country – on account of having surrendered their passports as part of bail conditions.
This is truly unfair and cruel – more so, when our courts are abused for a political agenda.
In the case of Ngarivhume, I applaud the respective High Court judges of appeal for doing the right thing.
There was no case against Ngarivhume to begin with, and it is time we saw more judicial officers standing on principle.
Nothing tarnishes a country’s profile than a compromised justice system.
Surely, why did Ngarivhume spend the past eight months behind bars?
Tendai Ruben Mbofana is a social justice advocate and writer. Please feel free to WhatsApp or Call: +263715667700 | +263782283975, or email: firstname.lastname@example.org, or visit website: https://mbofanatendairuben.news.blog/