Mawarire freed as State case collapses

HARARE - Popular #ThisFlag leader and cleric Evan Mawarire was released late last night following marathon deliberations on a dramatic day on which attempts by the State to bring in fresh charges collapsed when the court ruled they were in violation of the Constitution.

Magistrate Vakai Chikwekwe told the State to proceed by way of summons if it wanted to bring Mawarire to court.

Mawarire was on Tuesday charged with inciting public violence but curiously, the charges were upgraded when he appeared in court — leading to brutal arguments when his lawyer, Harrison Nkomo, protested spiritedly at the State’s conduct which he said violated his client’s constitutional right.

There was a strong team of 100 other lawyers who waved their practicing certificates when Chikwekwe requested to see the pastor’s legal representatives.

When Mawarire was brought to court in the morning, he was charged with inciting public violence but prosecutors Jonathan Murombedzi and Sabastian Mutizirwa altered the charge to subverting a constitutional government when he eventually appeared before a magistrate.

The State turned to Section 22 (2) of the Criminal Law (Codification and Reform) Act which carries a maximum of 20 years without an option for a fine.

This was a major shift as inciting public violence charge would have had an option of either a fine or imprisonment not exceeding 10 years.

“The Constitution is the supreme law of Zimbabwe and any conduct inconsistent is invalid to the extent of its inconsistency. Once there is violation of the provisions of the Constitution the arrest becomes unlawful and an accused person ought to be released,” Nkomo said.

“Sec 50(1) (a) of the Constitution says an accused person must be informed of the charge at the time of arrest,(70)(1)(b) provides that any person accused of an offence should be informed promptly to be able to answer to the charge.

“…any arrest or detention which contravenes section 50 or in which the conditions set out are not met is illegal. I urge you to refuse to preside over the matter your worship” the court must not engage in an unlawful process or it will be tantamount to eating fruits from a poisonous tree.”

Murombedzi and Mutizirwa argued that their conduct was consistent with procedures.

“This court is sitting to determine whether a reasonable suspicion has been established and we have presented sufficient facts for accused person to be placed on remand, his arrest and court appearance is therefore legal,” argued Murombedzi.

The magistrate then took a brief adjournment and requested to see the warned and cautioned statement relating to the fresh charge.

Chikwekwe adjourned for more than one-and-half-hours and excused himself upon return saying he had gone to research thoroughly before reaching his determination. He ruled that the State had adopted a procedure that violated the Constitution and ordered Mawarire’s immediate release.

Hundreds of Mawarire’s followers gathered at the court entrance lighting candles in celebration as they welcomed him.

Mawarire then addressed the crowd and applauded the people for remaining a united force.

“Taratidza kubatana…ngatirambei takabatana murunyararo tichiitira nhaka yevana vedu (We have shown that we are united and we should keep up with the spirit and safeguard our children’s heritage),” he said.

Comments (2)

The Government was just trying make sure the stay away which the pastor had called for was not going to succeed that is if we look at the timing of the arrest. If it was a serious matter, then how can a prosecutor attempt to change the charges in court? If encouraging people to demonstrate is a crime then even campaigning during elections can also be classified as illegal. The constitution allows people to demonstrate so there is no way the state can make demonstrations illegal.

mwanawevhu - 15 July 2016

To those that are being used to perform unfair practices for the state, be they police, army, judiciary , I implore you to see reason and think wisely, remembering that all this will come to end, and you will be asked to account for your actions someday. Do you want to be caught in the wrong? this is the time to do the right thing and side with the people.... all that the people are doing is trying to make Zimbabwe prosper again for everyone, including YOU!!! Let's all work to stop the CRYING OF OUR BELOVED COUNTRY...

Den - 15 July 2016

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