After more than a month in jail, two of Zimbabwe’s most high-profile prisoners were released on bail this week. Both had been refused bail by the same magistrate, and both were finally released on bail on the orders of two different judges on grounds that were remarkably similar.
Journalist Hopewell Chin’ono and Jacob Ngarivhume, leader of the opposition party Transform Zimbabwe, were both held for their alleged role in protest action called for 31 July, with the state claiming they were inciting people to revolt against Zimbabwe’s President Emmerson Mnangagwa and his government.
Conditions in the Chikurubi maximum security prison where they were held were poor. Chin’ono was brought from jail – and appeared in court, wearing leg irons. On another occasion prison officials said they were unable to unlock the manacles on the wrists of Ngarivhume because of a malfunction. Both lost weight during their imprisonment and by the time Chin’ono was released it seemed certain that he was suffering from Covid-19.
The same magistrate who refused to grant the two men bail also ruled that Chin’ono’s legal counsel, human rights lawyer Beatrice Mtetwa, was ‘disqualified’ from acting for him in the matter.
Both men were released by the high court on strict bail conditions. The written version of the judgment delivered in the case of Ngarivhume is not yet available, but it appears to be based on substantially the same issue as the central question in Chin’ono’s judgment.
Judge Tawanda Chitapi said that in his most recent refusal of bail, the magistrate had found that there were no ‘new facts’ not put before him previously.
'Passage of time'
The judge said that the magistrate had been wrong not to consider whether the ‘passage of time’ amounted to ‘changed circumstances’. The ‘passage of time’ had to be considered against the backdrop that the police had undertaken to complete their investigations within three weeks, but had not done so, nor given any explanation of their failure to complete the investigation.
Further, the magistrate had not found it relevant that 31 July, the date on which the ‘intended demonstration’ had been due to take place, had now passed.
The judge said that he disagreed that this was irrelevant. The judge appears to have read Chin’ono’s Twitter timeline, for he comments, ‘I did not find anything from the tweet attributed to [Chin’ono] to show that the demonstrations should continue beyond that date.’
In what might be seen as a comment rather prejudging the criminal case that could yet be brought against the Chin’ono, the judge added, ‘There is no doubt that the tweets were threats to remove ZANU-PF from government’.
He said he agreed with the magistrate’s reasoning that Chin’ono had ‘discounted’ elections as a method of removing government from power, and it was thus ‘reasonable to infer the use of non-constitutional means to remove the government’.
However, there was ‘no reference in the tweets … to indicate that continuity of demonstrations beyond 31 July was advocated for. The 31st July 2020 was D Day so to speak.’
Again, apparently unaware that he could be seen to be taking sides in a highly-fraught situation, the judge said, ‘The government commendably and rightfully addressed the citizenry through media … to go about their business as usual. I have said that the government acted commendably because it acted by dissuading the citizenry from engaging in public violence which is a punishable crime.’
However, the key date had now passed – something that warranted the court’s reconsidering its previous decision. ‘It was all about 31st July and the fact that nothing happened and the day has passed is a new fact.’ He thus found that the magistrate misdirected himself in fact and in law by holding that the passing of 31 July did not amount to new circumstances that impacted on the question of bail.
The judge said that Chin’ono had ‘offered not to use the twitter to incite people or to use it at all’.
‘It is a fact that [he] is on remand on reasonable suspicion that his twitter chats constituted an offence. It would be foolhardy for [him] to apply for bail, be granted bail and go out of prison to do the same thing for which [he] was arrested and incarcerated. He has in proposed bail conditions … undertaken not to engage in the use of the twitter account.
‘It appears to me that although [he] does not consider that he is guilty and has ever right to profess his innocence until found guilty, he must desist from further offending or engaging in similar conduct until the charges he presently faces are disposed of.’
The judge said he could not find there were compelling reasons for the pre-trial detention to continue, but would only order Chin’ono’s released ‘on conditions which are stringent enough to allay fears of [his] absconding or engaging in the same conduct for which he was arrested.’
His bail conditions included payment of 10 000 Zimbabwe dollar, handing over his passport, surrendering the title deed to his property in Harare, continuing to live at his home for the duration of his criminal trial, reporting to the police twice a week. Moreover, he ‘shall not post on his Twitter handle, namely @daddyhope or create any new twitter account for the use to incite the holding of mass demonstrations for whatever purpose until the case against him is finalised.’
In their statement on the release of the two men, Zimbabwe Lawyers for Human Rights said that Judge Siyabona Musithu had disagreed with the magistrate who refused bail to Ngarivhume. The judge said the magistrate erred in refusing to release Ngarivhume as there had been ‘a change in circumstances’ now that 31 July had passed.
This is, essentially, the same grounds as in the decision by Judge Chitapi in the Chin’ono matter.