S v Chin'ono (22 of 2021) [2021] ZWHHC 22 (27 January 2021)

1 HH 22-21 B 95/21 HOPEWELL CHIN’ONO versus THE STATE HIGH COURT OF ZIMBABWE FOROMA J HARARE, 27 January 2021 Ruling on Appeal against Refusal of Bail H Nkomo, for the appellant R Chikosha, for the respondent FOROMA J: This is an appeal by Hopewell Chin’ono (the appellant) against the decision by the Provincial Magistrate denying him bail pending trial on the allegations preferred against him in the case CRB HREP 353/2020. The allegations against appellant as reflected in form 242 are that appellant a freelance journalist published a false statement to members of the public during the period between 5 January 2021 and 7 January 2021 through his twitter handle Hopewell Chin’ono @daddyhope alleging that a 9 month old child had been beaten to death by an officer/ member of the Zimbabwe Republic Police when the police officer indiscriminately beat the mother of the child in Harare knowing that the statement was false or not having verified it as true. The said published statement is quoted as reading- “This is the most heart breaking video I have seen in a long time. A child was beaten to death by a Zimbabwean police officer after he indiscriminately beat up the mother of a 9 month old child resulting in him striking the child in the head with a baton stick: Why Why Why does the regime rely on violence against its citizens. Why Why Why when will this end??? Police violence in Zimbabwe is institutionalized and casually encouraged by the ruling ZANU PF elites publicly. See Annexure “A” attached. No annexure “A” was attached though. It is further alleged that through his statement the accused intended to undermine the public confidence in the Zimbabwe Republic Police or realised that there was a real risk or possibility that public confidence in the Zimbabwe Republic Police might be undermined. According to the allegations per form 242 police investigations had established that the alleged 9 months old child is alive and was never assaulted by a Zimbabwe Republic Police Officer with a baton stick contrary to the accused person’s statement. HH 22-21 B 95/21 These allegations are alleged to be a contravention of s 31 (a) (iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the essence of which is “Publishing or Communicating False statements prejudicial to the state.” Appellant was placed on remand facing these allegations and his application for bail which the Prosecutor opposed was dismissed by the provincial magistrate. Dissatisfied with the refusal of bail the appellant represented by his legal practitioners appealed to the High Court against such refusal alleging several contentious of misdirection. At the hearing of the bail application the court was requested to consider the state’s reasons for opposing bail to the then applicant now appellant as advanced by the investigating officer who had also deposed to an affidavit in which he highlighted the grounds of his opposition to bail as (i) that the applicant was likely to abscond (ii) that the charges the applicant/accused was facing attract a custodial sentence in the event he is convicted and that for this reason he is likely to abscond to avoid the consequences (There is no difference between ground (i) and (ii) which are a paraphrasing of the same ground of opposition to bail which generally the State puts up when it considers an accused a flight risk). (iii) That accused has pending cases of incitement to participate in a gathering with intent to promote public violence breaches of the peace or bigotry at Harare Magistrates Court on CRB 6801/20 and defeating or obstructing course of Justice at Harare Magistrates Court on CRB ACC 235/20 The investigating officer (IO) testified at the hearing of appellant’s bail application and maintained his position as above. In the court a quo Appellant’s counsel demonstrated in cross examination of the Investigating Office that the state had failed to proffer compelling reasons why appellant should not be granted bail as counsel proved that: (i) the state’s case against the appellant had not been proved to be strong at all let alone overwhelming (ii) that appellant was not a flight risk In proving that the state’s case against appellant was not strong the defence challenged the witness to produce a copy of the publication which the witness failed to do. The witness was also HH 22-21 B 95/21 challenged to provide to the name of the child which appellant had allegedly claimed police had assaulted to death in the publication and the witness could not do so. It is also significant to note that the reason given by the winess for not providing the child’s name is that the child was still too young to have been named as indicated by the child’s mother. As at the time of the alleged assault the child was said to have only been 3 or 4 weeks old. This alleged age of the child contradicts materially with that in the false publication in the form 242 which placed the age of the child assaulted to death at 9 months. (The underlinings are for emphasis). Despite thee unsatisfactory features of the witness’ evidence the court a quo believed the witness and acted on his testimony to the appellant’s prejudice. The defence in this court’s assessment also succeeded in dislodging the fear the State claimed to harbour i.e. that appellant was a flight risk by pointing to the following (i) that appellant was already on bail in respect of 2 other offences (allegedly as serious if not more serious than the one in casu) which bail had been granted by the High Court a sign that appellant was not considered a flight risk and (ii) that in addition appellant had been allowed release of his passport in order to travel to South Africa which he did and returned to Zimbabwe returning his passport back to the clerk of court conduct which clearly is inconsistent with a person inclined to abscond. The claim by the State that its case was overwhelming was not supportable on the evidence of the Investigating Officer. In fact the appellant was not demonstrated to have falsely or incorrectly misrepresented or interpreted the video which was the source of his alleged publication as the said video was not produced in court in the first place. In any event a statutory offence whose penalty provisions expose the accused to a fine or alternatively to imprisonment on conviction can hardly constitute a serious offence which would provide an incentive to abscond as: the Supreme Court of Zimbabwe has ruled that the correct approach in sentencing a convicted person charged with an offence whose penalty provision per statute provides the option of a fine is to give consideration first to imposing a fine and leave imprisonment for bad or repeat cases For this reason this practice in sentencing may not necessarily render the imprisonment in the penalty provision an immediate incentive for an accused to abscond. HH 22-21 B 95/21 In any event while in casu the state claimed that it has overwhelming evidence against the applicant there was no such evidence led to support this claim. Although the learned magistrate found that publication was not challenged this was a misunderstanding of the appellant’s position. Defence counsel went to some length challenging the witness to produce proof of the publication of the words forming the sting in the publication which challenge was indicative that publication was not actually being admitted by the appellant. This is apparent from the following question and answer during cross examination on p 39 of the record of the court a quo. Q So finally you accept that you failed to place before the honourable court for these proceedings the printed version of his statement? A ….. Yes The learned magistrate also misdirected himself by justifying his finding that the case against the appellant was overwhelming on the basis that “it would appear that it has not been disputed by the accused that the words complained of that now form the basis of the allegations were communicated. It is this court's view that as it stands there is overwhelming evidence against the accused in light of the quoted exchange between defence counsel and the Investigating Officer above. In the circumstances there is abundant evidence that the court a quo misdirected itself in a number of material respects. As a result of the court a quo’s decision to deny appellant bail is not supportable. Accordingly the appeal succeeds and the judgment of the court a quo denying appellant bail is hereby set aside and substituted with the following. It is ordered that (1) Accused is granted bail on the following conditions 1.1 The conditions of bail imposed on accused in case number CRB ACC 77/2020 shall apply in this order 1.2 Additionally the accused is to pay the sum of $20 000 to the Clerk of Harare Magistrates court as additional recognizance Mishi Nkomo Legal Practice, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners