State loses to Gwisai again

HARARE - Firebrand socialist leader Munyaradzi Gwisai has scored yet another victory against the Attorney General (AG)’s office after a High Court judge threw out the State’s appeal contesting his sentence in a public unrest case.

Gwisai, along with five others, were convicted on charges of conspiracy to commit public violence on March 21 last year.

His accomplices were Antonater Choto, Tatenda Mombeyarara, Edson Chakuma, Hopewell Gumbo and Welcome Zimuto.

Magistrate Kudakwashe Jarabini ordered the six to pay a $500 fine, failure of which they were to spend 10 months in prison.

In addition, Jarabini sentenced each of the six to 24 months in prison before suspending 12 months on condition of good behaviour for the next five years.

The remaining 12 months were set aside on condition that the activists were to perform 420 hours of community service.

Unhappy with the “lenient” sentence, the State filed a counter application against Jarabini’s ruling.

However, High Court judge Charles Hungwe dismissed the application for lack of merit.

“In my opinion, the test to be applied when considering an application for leave to appeal under section 62 (1) of the Magistrates Court Act is whether the Attorney General has a reasonable prospect of success on appeal. If he has, then, leave to appeal should be granted. If he has not, the leave to appeal should be refused.

“Applying the above principles to the present application, I am satisfied that the Attorney General’s appeal does not enjoy any prospect of success,” ruled Hungwe.

Hungwe said the application for leave to appeal was not timeously made as stipulated by the law.

“The application for leave to appeal was out of time. Notwithstanding this anomaly no application for an extension of time within which to apply for time was made nor was an application for condonation of the late filing of the application for leave to appeal as is required by the rules,” said Hungwe.

“If the Attorney General wishes to ensure that a particular convicted person should serve a longer sentence of imprisonment than that imposed by the magistrate, he must act quickly and take the matter up as a matter of urgency,” said Hungwe.

Hungwe said the AG’s grounds of appeal failed to encompass matters set out under the Magistrates Act.

Gwisai was arrested in February 2011, together with 44 other social and human rights activists, while 39 were later freed, leaving the other six in court.

Initially police charged Gwisai for treason but later downgraded the charges to inciting public violence.

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