The “Weaponization” of the Criminal Law in Zimbabwe

Tanveer Jeewa is the Legal and Communications Officer at the International Commission of Jurists, Africa Regional Programme

After spending 72 days in remand detention, Zimbabwean student activist Alan Moyo was released on bail on 19 February 2021. Moyo’s lengthy pre-trial detention is sadly not unusual – it is one of numerous cases witnessed in recent months in Zimbabwe, targeting those perceived to be critical of government’s policies. As can be seen from the cases of Moyo and other activists, human rights defenders and members of opposition parties, the government of Zimbabwe has displayed a pattern of abusing its criminal process to stifle and intimidate critics. Moyo was arrested on 7 December 2020 on charges of inciting public violence and for allegedly participating in the organization of the 31 July 2020 anti-corruption peaceful protests.

Another case which has commanded the attention of international media was the arrest and detention of Zimbabwean journalist, Hopewell Chin’ono. In July 2020, Chin’ono was arrested on charges of incitement to participate in public violence – having allegedly contravened section 187(1)(a) as read with section 37(1)(a)(i) of the Criminal Law [Codification and Reform] Act. He was accused of calling for the removal of a constitutionally elected government through an uprising, using his Twitter account. In fact, in June 2020, Chin’ono had done nothing more than investigative work which exposed corruption in the coronavirus-related contracts awarded by Zimbabwe’s Ministry of Health and Child Welfare to Drax International, and tweeted that uniformed police had been questioning his staff. Having been denied bail, Chin’ono spent 45 days in pre-trial detention during which time he was held at Harare’s notorious Chikurubi Maximum Security Prison.

On 3 November 2020, Chin’ono was arrested again for allegedly violating his bail conditions and obstructing justice by posting a tweet relating to his possession of confidential information from the National Prosecuting Authority relating to the denial of bail to the president of the Zimbabwe Miners’ Federation, Henrietta Rushwaya. After being denied bail again, Chin’ono remained at the Chikurubi Maximum Security Prison until 20 November. Most recently, on 8 January 2021, he was again arrested, this time on charges of “communicating falsehoods” for allegedly sharing a video he claimed showed a police officer beating a baby to death. He was only granted bail after 20 days in remand detention.

Political activist, Jacob Ngarivhume, was arrested in July 2020, and charged jointly with Chin’ono for allegedly calling for protests against government corruption. After 45 days in remand detention, and four failed attempts to secure bail, Ngarivhume secured bail.

In  similar vein, Job Sikhala, one of  Chin’ono’s legal representatives  and the vice chair of the main opposition party, Movement for Democratic Change Alliance (MDC Alliance) was charged with inciting the public to commit violence and arrested on 21 August 2020 for  allegedly posting videos on social media inciting the public to revolt against the government of Zimbabwean President Emmerson Mnangagwa. He was released on bail after 31 days in remand detention. Sikhala was consequently arrested again on 9 January 2021, charged with communicating falsehoods for sharing the same video as Chin’ono. MDC Alliance spokesperson, Fadzayi Mahere, was arrested on 11 January 2021 on charges relating to “publishing or communicating false statements prejudicial to the State” in contravention with section 31(a)(iii) of the Criminal Law Code. Ms Mahere was released on bail on 18 January.

In addition to these cases, the long list of activists and opposition members who have been arrested on spurious grounds includes Joanah Mamombe, Netsai Marova and Cecilia Chimbiri.  MDC Alliance youth leader, Godfrey Kurauone, has signified his intention to sue the police for wrongful arrest, after spending 45 days in remand prison upon his arrest on 31 July 2020 for criminal nuisance. The arrest came after he allegedly circulated a video on social media while singing a song with the words: “Ichava nhoroondo kana ndatenderwa na baba kubvisa Mnangagwa… Ichava nhoroondo” translated from Shona as: “It will be history when I get a directive from my father to dethrone President Emmerson Mnangagwa.”

The arrest and subsequent denial of bail and prolonged pre-trial detention is undoubtedly and increasingly being used as a tool of repression in Zimbabwe. This abuse of the criminal law not only punishes the legitimate assertion of freedom of expression, but is often done in violation of basic fair trial and pre-trial rights protected under Zimbabwe and international law and fundamental to the fair administration of justice.  

Zimbabwe and International Standards for Pre-Trial Rights

The right to pre-trial release or bail is essential to upholding the principle of the presumption of innocence, a fundamental tenet of the rule of law. It is established in the Zimbabwe Constitution and forms part of Zimbabwe’s international legal obligations under African and global treaties.

Section 50(1)(d) of the Zimbabwean Constitution prescribes that any person who is arrested “must be released unconditionally or on reasonable conditions, pending charge or trial, unless compelling reasons are justifying their continued detention.”

The International Covenant on Civil and Political Rights (ICCPR) to which Zimbabwe is a party, reflects the universal nature of this standard. Article 9(3) provides:

“Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.”

Further, Zimbabwe as a party to the African Charter on Human and Peoples’ Rights (African Charter), has an obligation to comply with Article 7(1) which affords an accused “[t]he right to be presumed innocent until proved guilty by a competent court or tribunal”. The African Union endorsed Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa affirm that “Unless there is sufficient evidence that deems it necessary to prevent a person arrested on a criminal charge from fleeing, interfering with witnesses or posing a clear and serious risk to others, States must ensure that they are not kept in custody pending their trial.”

The Guidelines on Arrest, Police Custody and Pre-Trial Detention in Africa (Luanda Guidelines)require States to ensure that officials authorized to make decisions on police bail or bond do so on the basis of the principle that continuing to detain an individual in police custody should be a measure of last resort, used only when necessary and when no other alternatives are available.

In addition, such officials may decide to continue police custody only if:

• there are reasonable grounds to believe that the individual has been involved in the commission of a criminal offence that carries a term of imprisonment as a possible punishment;
• there is a danger that the individual will abscond or commit a serious offence or that the release will not be in the interests of justice; or,
• there are no alternatives to detention that will adequately address the risk(s).

As evident from these standards, the concept of bail is primarily to ensure the accused’s right to liberty until they are convicted in a fair trial or unless there is a truly compelling reason to deprive them of their liberty. Thus, it is understood that States must ensure that it is not the general rule that individuals arrested, detained or charged with a criminal offence are held in custody pending investigation or trial. Rather, unless and until individuals are convicted of a criminal offence, they generally may not be deprived of liberty, except under those limited circumstances where bail can be denied.

In most of the cases discussed, the Zimbabwe Magistrate Courts appear to have misapplied the law. This is evidenced by the fact that in most of these cases where bail appeals were lodged before the High Court, they were successful. In the case of Sikhala, the High Court found that the Magistrates Court had not indicated any offence which they believed he was likely to commit if released on bail. The High Court highlighted that, having not yet proved if Sikhala had committed the offence of which he was convicted for, this belief was misguided.

In addition to this misapplication of the law, there also appears to be a selective and inconsistent application of the law by the authorities. By comparison to the cases above, a few apparently politically favoured persons have been treated preferentially. On 19 June 2020, the then Minister of Health, Obadiah Moyo, was arrested on corruption charges. The prosecution did not oppose bail and he was granted bail by the Magistrates Court the following day. More recently, on 7 February 2021, former Zimbabwe Labour and Social Welfare Minister Petronella Kagonye was arrested on allegations of corruption and was also granted bail after two days.

The Zimbabwean Constitution under section 56(1) provides an accused with the right to equal protection. Article 14(1) of the ICCPR states that “All persons shall be equal before the courts and tribunals”. Article 14 operates together with Article 26 of the ICCPR, which provides that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” Article 3 of the African Charter also provides that every individual shall be equal before the law and entitled to equal protection of the law.

This preferential treatment of others raises questions as to whether activists like Alan Moyo, Chin’ono, Sikhala, Kurauone, and Ngarivhume are being denied their rights to equal protection of the law, both under national and international law. Despite facing equally serious charges, Obadiah Moyo and Kagonye were granted bail while Alan Moyo, Chin’ono, Ngarivhume and Sikhala were denied bail and remained in remand at least 45 days. Of particular concern is that many of the accused were not provided with or allowed to wear adequate PPE in prison or have their prison cells sanitized, despite the broad extent of the COVID-19 infections in the country and in prisons at the time.

This situation illustrates how the criminal justice system is being effectively “weaponized” to intimidate and suppress critics. By keeping activists and politically disfavoured people arbitrarily detained while they are still innocent, the authorities send a message seeking to chill many who would exercise their rights to political participation and free expression that a prison cell may await them even if they do so lawfully.

Currently, Makomborero Haruzivishe who was at the forefront of the solidarity efforts to free Alan Moyo, is behind bars. On 3 March 2021, Haruzivishe had his bail revoked. Additionally, Joana Mamombe and Cecilia Chimbiri are still waiting for the handing down of a ruling on a bail application after having been arrested for allegedly violating lockdown regulations by holding a gathering. The international community should be paying close attention to the case of Haruzivishe and other activists given the treatments of Alan Moyo, Chin’ono, Sikhala and others. As more attention is focused on the actions of the Zimbabwean government, it is critical that the authorities uphold Zimbabwe’s duties under international and domestic law and ensure that the rights of all accused persons are protected, not violated.