The International Commission of Jurists (ICJ) welcomes the judgment of the Harare High Court which has acquitted human rights activists Joana Mamombe and Cecelia Revai Chimbiri following their arrest on 10 June 2020. The case reviewed magistrate Faith Mashure’s decision to charge the women for “publishing or communicating false statements prejudicial to the State”, or alternatively, “defeating or obstructing the course of justice”. The high court held that the magistrate’s finding of a prima facie case against the human rights activists was grossly unreasonable and attributed to bias and mala fides.
Mamombe and Chimbiri are members of the Citizens Coalition for Change (CCC). High Court Judge Nyaradzo Munangati Manongwa stated that this was an exceptional circumstance requiring intervention notwithstanding the general rule that a superior court should not intervene with the disposition of a case by a lower court. The Court noted that essential elements to establish a prima facie case for the State were fatally lacking, resulting in the magistrate’s decision being grossly irregular.
The high court also found that the magistrate improperly introduced evidence not led before the court, and where evidence was adduced, ignored evidence in the applicants’ favour. The court concluded that it was difficult to understand how the magistrate concluded that a prima facie case had been established. Further, the actions of the magistrate in the conduct of the case raised concerns regarding judicial independence as the magistrate was driven by the need to justify her predetermined decision. Ultimately in such cases the court has no discretion but must discharge the accused.
“We welcome the progressive decision of the high court which has vindicated Joana Mamombe and Cecelia Chimbiri. These activists should never have been prosecuted for sharing the account of their abduction, torture and sexual assault. The state elected to prosecute them at a time when they were urgently in need of medical and psychosocial care. It is vital for the operation of any democratic society for courts to act independently and impartially. We are encouraged that the high court has recognized the egregious harms perpetrated against these activists and acted to discharge the case and acquit them of the charges, said ICJ Africa Director, Kaajal Ramjathan-Keogh.
Background:
Human rights defenders in Zimbabwe are subjected to arrests, prolonged detentions, unwarranted criminal prosecutions, physical attacks, harassment, killings, abductions, torture and enforced disappearances in contravention of their human rights. There has been a documented pattern of systematic attacks against human rights defenders in Zimbabwe, perpetrated by both State and non-state actors. These atrocities are meted out to human rights defenders and are clear violations of human rights guarantees under the Constitution of Zimbabwe.
On 13 May 2020, three women human rights defenders, Joana Mamombe, Cecelia Revai Chimbiri and Netsai Marova were stopped at a Harare police checkpoint for participating in a peaceful protest on the lack of security protections in vulnerable communities, in light of the country’s COVID-19 response measures. After being stopped, they were handed over by the police to unknown agents and were beaten, sexually assaulted, and tortured while in custody. On 15 May 2020, the women were found dumped by the roadside approximately 90km north of Harare. They were accused of lying to the police and of faking their kidnapping and lying about being tortured. The women were charged with violating sections 31(a)(i), 31(a)(iii) and 184(1)(f) of the Criminal Law Codification and Reform Act [Chapter 9:23]. The women were denied bail and remanded in custody until 26 June 2020. After the lawyers appealed to the High Court, the women were granted bail under “onerous conditions”, including bail of ZWD $10,000.00 (about USD $31), as well as a condition to report to the police three times a week, and a ban on discussing their matter in public, private, or on social media. Mamombe, who required hospitalization in 2021 was forced to leave the hospital and was returned to prison.
The judgment of the Harare High Court was handed down on 4 July 2023. Justice Manongwa stated:
“The evidence adduced by the State is so manifestly unreliable and certainly no reasonable court could safely act on it. It is trite that a gross misdirection can arise from the misapplication of the law to the facts and that is what obtains in casu.” Justice Manongwa also remarked that, “The finding can only be attributed to bias and mala fides… A judicial officer has to be impartial and where the parties reasonably perceive that a judicial officer is not impartial that impacts upon the decision made. Such decision is a travesty to justice and is capricious and irrational”.
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[Judgment] Joana Mamombe and Cecelia Chimbiri v Chief Magistrate Mushure
Contact
Mulesa Lumina, Legal and Communications Associate Officer (Africa Regional Programme), e: [email protected]
Kaajal Ramjathan-Keogh, Director (Africa Regional Programme), e: [email protected]