In May 2020, Joana Mamombe and Cecilia Chimbiri were arrested with Netsai Marova at a roadblock after they staged a peaceful anti-government protest in Harare. They were then allegedly abducted by security agents while still in police custody and their whereabouts were unknown for two days. When they reappeared, they had been badly tortured, sexually assaulted and needed hospitalisation.

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While they were in hospital, the state laid charges against them for organising the protest. Additional charges were raised in June 2020 for making “false reports” about their abduction.

No satisfactory investigation of the abduction was ever done by the state. Instead, it accused them of organising the protests and making false abduction reports. They suffered prolonged detention and went through a prolonged trial.

At the close of the state’s case, their lawyer, Alec Muchadehama, applied for their discharge, arguing that the state witnesses had not established any case at all against them. But the presiding magistrate, Mrs Mushure, ruled against their acquittal, ordering that they take the witness stand to defend themselves. This order was taken on review and was quashed by Justice Manongwa this week.

The judge’s reasoning was refreshing and it is hoped that the lower courts – which are the usual arena of the injustice of persecution through prosecution – have learnt a lesson and will be bold enough to rely on this precedent in current as well as future cases involving abuse of the criminal justice system.

Justice Manongwa declared the evidence brought by the National Prosecuting Authority (NPA) was “grossly unreasonable, irrational, characterised by bias and malice and cannot be in accordance with real and substantial justice”. 

He said: “The applicants cannot be pushed into a defence case to supplement the inadequacies of the State case and hope that in the process they incriminate themselves.

“To adopt such an approach would be unconstitutional and against the principles that place the burden on the State to prove its case, and in this case on a prima facie basis at the close of the State case…it is injudicious to support a State case which is unable to stand on its own due to lack of evidence. Where such is the case, an accused is entitled to an acquittal.”

Manongwa continued: “It is not for the court to try and prop up a crumbling case” and that “a court has to acquit in the absence of evidence to support an essential element of a charge, or where the evidence is manifestly unreliable.”

Joana Mamombe and Cecilia Chimbiri were accordingly found not guilty, acquitted and discharged.

It is unfortunate that the two young, female, political leaders from the opposition needlessly went through a very difficult period in their lives, including prolonged detention and torture, and that the state almost succeeded in its fishing expedition for them to self-incriminate or supplement a weak case at the Magistrates’ Court.

The defence counsel and the high court need to be applauded for putting an end to this abuse of the two.

Rule of law and the constitution

The high court was able to vindicate the independence of the court in dealing with a politically charged case in a manner expected of and consistent with the Constitution of Zimbabwe. 

Section 164 of the constitution states that the courts are independent and are subject only to the constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice. 

Section 164(2) further stresses that judicial independence, impartiality and effectiveness are central to the rule of law and democratic governance.

The Bangalore Principles of Judicial Conduct set out core values for the ethical conduct of judges as independence, impartiality, integrity, propriety, equality, competence and diligence. Justice Manongwa has managed to have these boxes ticked in the way the high court dealt with this matter. This should be a good example to the magistrates’ courts in Zimbabwe that deal with the bulk of the cases in criminal law.

NPA not independent

It is with the NPA that there is a problem of not depicting sufficient independence, impartiality and professionalism.

The Constitution of Zimbabwe 2013, via section 258, mandates the NPA to institute and undertake criminal prosecutions. According to Section 262(2), the NPA must not act in a partisan manner, further the interests of political parties, prejudice the lawful interests of any political party or violate the fundamental rights of any person. 

The UN Guidelines on the Role of Prosecutors states that prosecutors shall “carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination; protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect”. 

Prosecutors are also compelled professionally not to “initiate or continue prosecution” or even to “stay proceedings when an impartial investigation shows the charge to be unfounded”.

The findings of Justice Manongwa raise fundamental questions about the role of the NPA in flogging a dead horse (the case) and what the motivation was. It raises the key question of whether the prosecutor was independent, impartial and professional in the way this matter was handled.

When the NPA was separated from the Attorney General’s office in the adoption of the 2013 constitution, part of the reason and logic was to make the NPA more independent, impartial and professional, and in particular to avoid it being instrumentalised by those who wield power.

The conduct of the NPA in this and other politically charged cases raises significant questions about whether these objectives were achieved.

If not, what is to be done to stop weaponising the NPA against legitimate opponents, pro-democracy activists, disliked individuals and civic space so that the rule of law and not the rule by law is entrenched?

As Justice Thomas Masuku of the Namibian High Court has persistently said, “The law must not be like a spider’s web that only catches the weak!” DM

Arnold Tsunga is a human rights lawyer and the principal managing partner at Tsunga Law International and Convenor of Civic Space Network – Africa.