SOCIAL activist and cleric, Evan Mawarire was yesterday, predictably, remanded in custody to February 17 on charges of subverting a constitutionally-elected government, in proceedings that could easily precipitate what could be the “trial of the decade”.
BY XOLISANI NCUBE
While agreeing with the defence that Mawarire, who held a Bible throughout the hearing, could challenge his placement on remand, magistrate, Elisha Singano said there was “reasonable suspicion that he committed an offence”.
“The accused’s conduct links him to the offence charged,” the magistrate ruled.
Addressing a packed courtroom, the State’s lead prosecutor, Edmore Nyazamba argued that Mawarire had breached the Constitution, which places limitations on the exercise of individual rights such as disobedience to government policies.
“Mawarire is #ThisFlag founder, facing charges of subverting a constitutionally-elected government and also inciting public violence. He incited the public on social media and this caused several properties to be destroyed,” the prosecutor said.
Nyazamba said Mawarire would also face trial for embarrassing President Robert Mugabe at a meeting of the United Nations General Assembly, after he called for another demonstration in New York last year.
The prosecutor accused Mawarire of pushing for public resistance to Statutory Instrument 64 of 2016, which banned selected goods from being imported into the country, the introduction of bond notes and the presence of police officers on the roads, saying the State would produce videos and statements.
After raising a complaint against the police, arguing that Mawarire was arrested by members of the Central Intelligence Organisation, who refused to identify themselves, but insisted on interrogating him, thereby, violating his rights, the cleric’s lawyer, Harrison Nkomo, a member of the Zimbabwe Lawyers for Human Rights, argued against remand.
Nyazamba said he had taken note of the complaint and promised to provide the court with a report on the issue.
“The State has failed to convince the court as to why Mawarire should be placed on remand,” Nkomo continued.
“The facts placed before the court, thus far, do not establish a case for Mawarire to be placed on remand,” he said, quoting a 1991 Supreme Court judgment that gave an accused the right to challenge placement on remand.
“Mawarire’s actions do not constitute an attempt to remove a constitutionally-elected government, as required by section 22(2) of the Criminal Law (Codification and Reform) Act. What the accused did is constitutional, as provided for under section 61 of the Constitution, which is freedom of expression. Every Zimbabwe citizen has a right to influence, challenge or support any government policy under section 67 of the Constitution. The documents presented by the State do not show that Mawarire tried to violently influence resentment of a government policy.”
Nkomo said Mawarire had not committed an offence in asking Mugabe to resign.
“It is not a crime provided by section 67 of the Constitution. If the President agrees with Mawarire, he has the right to use section 96 of the Constitution to tender his resignation to the Speaker (of Parliament),” he said.
“So there is nothing wrong with what he is alleged to have committed. In any case, urging people not to go to work is not illegal.
“Anyone, who embarked on violence after Mawarire’s call for people to oppose government policy, was not responding to his call because he urged them to boycott through passive resistance and not violently.”
But Nyazamba argued that Mawarire urged people to revolt and that the political rights that Mawarire has should be exercised in a peaceful manner.
“In urging people to resist government policy, Mawarire was coercing them into civil disobedience, whether the resistance is active or passive does not matter,” he said.
“It is clear, therefore, that there is a possibility that the accused may have committed an offence to warrant his placement on remand.”
Nkomo argued that the State was basing its arguments on “half-truths”, accusing the prosecutors of seeking to alter the charge sheet.
“The State has failed to respond to the fact that it is perfectly legal to demand that a sitting President must resign and if the President agrees, he should do so as provided for under section 97 of the Constitution,” he argued.
As he walked into a prison van, the cleric waved to a small group of supporters and shouted: “Justice shall be served. God bless you all.”
Mawarire returned to Zimbabwe on Wednesday, but was immediately arrested by State security agents.
He is facing charges of subversion, plots to remove a constitutionally-elected government, abuse of the national flag and inciting public violence, which attracts a minimum 20-year jail sentence.
His lawyers said they would apply for bail at the High Court on Monday.
The cleric was arrested at Harare International Airport on arrival from the United States after six months in self-imposed exile.