ALPHA Media Holdings (AMH) and Zimbabwe Independent editor Faith Zaba (pictured) have asked a Harare magistrate to quash charges accusing them of insulting President Emmerson Mnangagwa, arguing that the State’s case is so vague and defective that it discloses no offence at law.
The two are being prosecuted over a Muckraker satirical column titled When you become a mafia state, which the State claims “undermined the authority of or insulted the President”.
Prosecutors allege the article was false, targeted the President and was intended to engender hostility towards him, a claim the defence has dismissed as unfounded and unconstitutional.
In an application for exception defence lawyer Alec Muchadehama for AMH, represented by its editor-in-chief Kholwani Nyathi, said the charges must be set aside because the State outline is “calculated to prejudice and embarrass” the accused and fails to meet the basic constitutional threshold for a fair trial.
“The purpose of a charge sheet is to inform the accused person in a clear and unmistakable language,” Muchadehama submitted.
“It must not be framed in such a way that an accused person has to guess or puzzle out by piercing out sections of the indictment or portions to gather what the real charge is which the crown intends to lay against them.
“In terms of section 69(1) of the constitution of Zimbabwe and accused person has a right to a fair trial. This cannot be achieved if an accused is hauled before a court to answer to vague charges,” he further stated.
Muchadehama said the charge is fatally defective because no complainant is named.
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“It is improper to allege the complainant is the State. The President himself has not complained, at least as far as we are concerned,” he argued.
“The alleged offence relates to undermining the authority of or insulting the President and not the State. There is no mention of the President or office of the President in the article complained of.”
Muchadehama added that the State had not furnished the court with the full article, but had instead “plucked certain sentences … thereby distorting the whole article”.
“The State cannot edit an article and seek to allege criminal conduct out of their own version of the article. On what basis is this being alleged by the State? Such allegations can only be made for malicious reasons or out of ignorance and such malice.”
The defence insisted Muckraker is plainly a satirical column — “a type of opinion or commentary piece that uses humour, irony, sarcasm, exaggeration and wit to expose or criticise social issues” — and therefore protected expression.
“A reading of the whole article shows that nowhere is the President mentioned, nowhere is the Republic of Zimbabwe mentioned,” Muchadehama said.
To bolster his argument, he cited past cases involving opposition politicians — among them — Solomon Madzore, Douglas Mwonzora and Job Sikhala — who were prosecuted for allegedly insulting the late former president Robert Mugabe, but ultimately had charges struck down for violating constitutional free-expression rights.
“Solomon Madzore was charged under section 33 being alleged that during a pre-election rally in Mbire, Mashonaland Central he called President Mugabe a ‘limping donkey’, who was blocking prime minister Morgan Tsvangirai from his work in inclusive government,” Muchadehama said.
“Although a Constitutional Court referral was made, the Constitutional Court disposed of the matter on the basis of the insufficiencies of the charge.”
He added that Mwonzora, accused of calling Mugabe a “goblin”, was acquitted after the court held that no reasonable person could be misled by such remarks.
Muchadehama went further, telling the court that “the one who must be charged for insulting the President are the investigating officers who wrote the charge sheet claiming the person referred to in the article was President Emmerson Mnangagwa”.
He said the accused, therefore, “pray that the charges against them be quashed and set aside and they should be removed from remand”, adding that the charges were a violation of the accused’s constitutional rights.
Defence lawyer, representing Zaba, Chris Mhike, concurred, saying AMH and the Independent editor were being wrongly treated as a single entity.
“We wish to emphasise the point that there can only be one publisher of a publication. The first accused is not a shareholder of ZimInd Publishers or Alpha Media Holdings. She is only an employee,” he argued.
“The language used in the charge is, therefore, unsustainable, where it says both Faith Zaba and Alpha Media Holdings or one of them unlawfully and intentionally published.
“The State itself is confused as to what exactly it wants to say. Is it both or is it one of the two. That is the fluidity that my brother Muchadehama attacks.
“The way you respond to an allegation of both or either or is very different. It must be very obvious to anybody reading the facts of this matter that an employee of a publisher cannot herself be the publisher.
“The very least the first accused must be excused from these proceedings because it is obvious that she is not the publisher and, therefore, cannot be liable for any charges, actual or imagined of her employer,” Mhike further stated, adding that the facts as alleged “do not disclose the offence” for Zaba and AMH.
He submitted that the conduct of the State violated sections 9 and 10 of the Criminal Law (Codification Reform) Act, which speak to liability of criminal conduct or omissions.
Prosecutor Lawrence Gangarahwe requested time to file a written response and said he would submit by Friday. The defence will reply by December 12.
Magistrate Apolonia Marutya is expected to hand down her ruling on December 17.
According to the State, the contested article, carried in the Independent edition of June 27 to July 3, falsely alleged Zimbabwe had devolved into a “mafia state” and implicated the country in alleged electoral interference in neighbouring states.
It further accuses Zaba and AMH of attaching a photograph of President Mnangagwa and Mozambican President Daniel Chapo to reinforce the alleged insult.
