Ngarivhume’s conviction and sentence an indictment on Zimbabwe’s democracy

The Zimbabwe Human Rights NGO Forum (the Forum) has learnt with utter shock, sadness and disbelief of the conviction and sentence of opposition Transform Zimbabwe leader Jacob Ngarivhume.

Ngarivhume, who was convicted of charges of incitement of public violence on 27 April was on 28 April sentenced to an effective three years’ imprisonment without an option of a fine. Harare Magistrate Feresi Chakanyuka sentenced him to 48 months in jail but suspended 12 months on the condition that during the next five years, Ngarivhume is not convicted of a similar offence. The sentencing came after the magistrate dismissed as frivolous and vexatious an application by Ngarivhume’s lawyers, Professor Lovemore Madhuku and Moses Nkomo for referral to the Constitutional Court challenging section 192 of the Criminal Code. This section provides that any person convicted of incitement shall be liable for the same punishment liable to a person who would have actually committed the crime.

Ngarivhume was arrested on 20 July 2020 and was initially charged jointly with investigative journalist Hopewell Chin’ono. The charge emanated from posts he had made on Twitter urging people to protest against government corruption on 31 July 2020. On 22 July 2020, Chin’ono and Ngarivhume made their initial appearances in the Magistrate Court. He was denied bail on four different occasions. He spent a total of 45 days in remand detention.

Chin’ono was acquitted on 6 December 2021 by Justice Siyabona Musithu who reviewed the Magistrate Court ruling and concluded that the State had failed to establish a case against the journalist.

The disproportionate nature of the sentence compared to the alleged offence speaks volumes.

The Forum is perturbed by the growing trend of convictions of Human Rights Defenders (HRDs) as a result of the weaponization of the criminal justice system to punish voices of dissent. This is evident in the following timeline. On 29 September 2022, prize-winning Zimbabwean novelist and filmmaker Tsitsi Dangarembga was found guilty of “inciting public violence” during a 2020 anti-government protest. She was convicted together with a fellow protester Julie Barnes. Both were fined. On 5 April 2023, Citizens Coalition for Change spokesperson Fadzayi Mahere was found guilty of publishing falsehoods prejudicial to the State on a charge journalist Hopewell Chinono’ was acquitted from.

The Forum strongly condemns this brutal and wide-ranging clampdown on the right to freedom of assembly and association, which is witnessed just a few months away from the 2023 polls. The Forum views the judgments in the Ngarivhume, Mahere and Dangarembga cases as an example of persecution by prosecution.

The Forum remains concerned by the fact that opposition MP Job Sikhala remains in prison having been denied bail over eight times since his arrest on 14 June 2022. This is despite bail, being a constitutional right. His lengthy pre-trial detention, captured in a document, Justice Delayed is Justice Denied, Persecution by Prosecution in the case of Zengeza West MP Job Sikhala, where procedures were flouted willy-nilly, demonstrates the desire by the government to stifle dissent and shut democratic space.  The State has now added a third charge on Sikhala of disorderly conduct.

By weaponizing the legal system and converting it into an instrument to attack the civic space and punish perceived opponents, the authorities in Zimbabwe discredit the legal system and erode public confidence in the independence and impartiality of the judiciary. Civic space is being suffocated. Protest as a constitutional avenue for citizens to express discontent is being criminalised. Politicization and weaponisation of the law and the courts at the expense of active demand for rights is in direct contravention of the constitutional guarantees to freedom of assembly and association read conjunctively with the right to peacefully protest under sections 58 and 59 of the 2013 Constitution. This also flies in the face of the Government’s obligations under the African Charter of Human and People’s Rights under Articles 10 and 11 respectively to respect the rights to freely assemble and associate with others.  Human rights defence work is not a crime; neither is actively demanding one’s rights or belonging to a political party other than the ruling party.

It is in this vein that the Forum urgently calls upon the government to:

• in all circumstances, ensure the protection and promotion of and respect for fundamental human rights and freedoms in accordance with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights;
• conform to the provisions of the Universal Declaration of Human Rights Defenders, which provides specific protections to human rights defenders that include the right to conduct human rights work individually and in association with others;
• pay due regard to regional best practices regarding pre-trial detention and show this commitment by domesticating and enforcing the ‘Principles and guidelines on the right to a fair trial and legal assistance in Africa’ proclaimed by the African Charter on Human and People’s Rights;
• create and safeguard a conducive operating environment for Human Rights Defenders in Zimbabwe and show genuine commitment to do so by

1. immediately condemn the criminalization of legitimate human rights activism by members of the Zimbabwe Republic Police and the judiciary and
2. facilitating the unconditional release of all political prisoners in Zimbabwe as well as withdrawing stringent bail conditions and additional criminal charges on political prisoners that serve to continuously impinge upon their constitutional guarantees to freedom of movement and liberty.