COURT WATCH 4/2022

30 September 2022

Introduction

Makomborero Haruzivishe is a 30-year-old male human rights and political activist. He was arrested on 5 February 2020 on allegations of committing two counts of criminal offences. The first count that Mr Haruzivishe was facing was that of inciting public violence as defined in section 187(1)(a) as read with section 36 of the Criminal Law (Codification and Reform) Act. The second count was that of “resisting a peace officer” as defined in section 176 of the same Act. In essence the second count was an allegation that Mr Haruzivishe resisted arrest and it was linked to the first count. A copy of the Criminal Law (Codification and Reform) Act can be accessed on our website on the following link [link]. After a full trial before Magistrate Ms Judith Taruvinga, Haruzivishe was convicted on both counts on 31 March 2021. He was sentenced to an effective 14 months imprisonment on 6 April 2021. On 22 September 2022 the High Court overturned the conviction and sentence and found him not guilty of both crimes, he had been convicted of.  

Trial

After hearing evidence from all State witnesses and those testifying on behalf of Mr Haruzivishe, the magistrate made a decision that Mr Haruzivishe was guilty of both counts that he was facing. The court was satisfied that the evidence placed before it proved beyond any reasonable doubt that on 5 February 2020 and at corner First Street and Nelson Mandela Street in Harare, Mr Haruzivishe had committed a crime of inciting public violence by whistling and throwing stones at police officers. Further the court was satisfied based on the evidence presented that on the same day and at the same place Mr Haruzivishe had resisted arrest by a policer officer who attempted to arrest him for the allegedly inciting public violence. The evidence for both counts came from two police officers whom the court was of the view that they confirmed each other’s versions of what happened on the day in question.

For the first count of inciting public violence, Mr Haruzivishe was sentenced to 24 months imprisonment of which 10 months were suspended on condition of good behaviour. On the second count of resisting arrest the court sentenced Mr Haruzivishe to 12 Months imprisonment of which 6 months were again suspended on condition of good behaviour. The sentences were however supposed to run concurrently, meaning that Mr Makomborero would effectively serve a total of 14 months imprisonment.          

Appeal

Before we continue with Mr Haruzivishe’s case we will briefly talk about the appeal process in general. Anyone convicted of an offence has the right to have their matter looked into by a superior court in a bid to have the conviction and or sentence overturned, set aside or sentence adjusted. This is referred to as the appeal process.  A person making an appeal should clearly highlight the grounds upon which their appeal is based and these grounds should point to a misdirection done by magistrate or judge who presided over their case. Generally, appeals from magistrate courts, whether against conviction or sentence, are filed in the Appellate Division of the High Court; appeals from trials heard in the High Court are filed in the Supreme Court.  The Supreme Court is the final court of appeal and there is no appeal from its decisions, except on constitutional issues which are dealt with by the Constitutional Court. Once one files their appeal (and they were sentenced to a custodial sentence) they may apply to be admitted on bail pending the finalisation of the appeal.

Back to the Haruzivishe case

Aggrieved by  the decision of the magistrate Mr Haruzivishe filed an appeal at High Court against both the conviction and sentence. His grounds of appeal were mainly an attack of the magistrate’s decision on the basis that the magistrate grossly misdirected herself in accepting the evidence of the two police officers when their testimonies were contradictory. Before the appeal could be heard, Mr Haruzivishe successfully applied for bail pending appeal in July 2021. He however remained in custody in respect of another pending matter in which he had not been granted bail. The appeal was heard by the High Court on 19 September 2022 before Justices Happious Zhou and Benjamin Chikowero.

The High Court agreed with the arguments made by Mr Haruzivishe through his lawyers. In its judgment available on our website [link], the court criticised the judgment by the magistrate as being “not thorough”. The Court went on to point out to the clear inconsistencies that characterised the evidence presented before the court. One area of inconsistency was the testimony relating to one witness who, in his statement at the police station had stated that he had witnessed Mr Haruzivishe whistling, throwing stones to police officers’ vehicle and had participated in arresting him as he resisted being arrested. This witness turned around in his testimony in court and stated that he had not seen Mr Haruzivishe throwing any stones and he did not participate in his arrest, rather by the time he got to where Mr Haruzivishe was the witness’ colleagues had already arrested Mr Haruzivishe. The High Court found that the facts in this case suggested that the allegations had been fabricated and the witnesses could not be said to have been credible hence the glaring inconsistencies on material facts.

The High Court stated that the magistrate had based her judgment on an incorrect appreciation of the evidence and as result based her decision on clearly wrong facts. Under the circumstances the High Court granted Mr Haruzivishe’s appeal and overturned the decision of the magistrate’s court substituted it by a decision that Mr Haruzivishe was not guilty of both charges he was facing. The sentence that had been imposed by the Magistrate therefore fell away.    

Conclusion

This case is a good example of the importance of checks and balances in the criminal justice system. Judicial officers are also human and can misdirect themselves in the application and interpretation of the law. The appeal process is a fundamental process in the administration of justice acting as a check and balance mechanism in the administration of justice.