HARARE magistrate Tapiwa Kuhudzai yesterday postponed the trial of Alpha Media Holdings (AMH) and its senior editors to February 25, pending the outcome of a High Court review of a ruling last month that rejected an application to have the charges quashed..
AMH, represented by its editor-in-chief Kholwani Nyathi, and Zimbabwe Independent editor Faith Zaba, are accused of insulting or undermining President Emmerson Mnangagwa through a satirical Muckraker column titled “When you become a mafia state” published on June 27 last year.
The two, represented by Chris Mhike and Alec Muchadehama, were seeking to have their criminal charges quashed.
In a detailed ruling last month, Harare magistrate Apolonia Marutya rejected an application for exception filed by AMH and Zaba.
She ruled that the State had sufficiently set out the alleged roles of the accused and that contested issues must be tested at trial.
The defence had argued that the State’s case was vague, disclosed no offence at law, and violated constitutional protections of free expression.
Marutya held that the charge sheet and the State’s outline adequately established the alleged conduct and intent of both accused persons, and that the arguments about publication, satire, and meaning went to the merits of the case rather than the sufficiency of the charge.
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“The role played by both accused persons was established even in the outline of State case, as well as in the charge sheet,” the magistrate ruled.
“The issue of whether or not the accused person is responsible for publishing stories or the duties of the first accused … is neither here nor there. The charge sheet clearly outlines that as an editor, she caused or participated in the publication of the article.”
Marutya also dismissed arguments that the charges were defective because they cited no complainant.
In criminal matters, she said, offences are commonly committed against the State, and the office alleged to have been undermined, “in this case, the Office of the President”, could be treated as a juristic person without being formally cited as a complainant.
“There is no law that prohibits them from being mentioned as complainants … It is not a requirement … where the complainant is a juristic person like in this instance, where the complainant deemed to have been wronged is the Office of the President,” Marutya ruled.
“The Office of the President cannot be taken to be a natural person in this instance. It is an office and, therefore, can be taken as juristic person.”
She concluded that the charges were neither embarrassing nor prejudicial.
Prosecutors allege the publication undermined the authority of the president. The State, represented by Lawrence Gangarahwe, argued that Zaba was charged for causing the publication in her capacity as an editor, while AMH was charged in the medium through which the offence was committed.
The defence, led by Muchadehama for AMH and Mhike for Zaba, argued that Muckraker is plainly a satirical opinion column protected by constitutional guarantees of free expression, employing irony and exaggeration to critique social issues.
They submitted that the President and the Republic of Zimbabwe were nowhere mentioned in the article, and that the charges selectively lifted phrases out of context, while failing to attach the full piece.
Muchadehama cited past cases involving opposition figures prosecuted for allegedly insulting the late former president Robert Mugabe, including Solomon Madzore, Douglas Mwonzora and Job Sikhala, where charges were struck down on constitutional grounds.
He argued that no reasonable reader could identify the president as the subject of the article, adding that it was the investigators that framed the charge sheet who had misidentified the target and, in doing so, were the ones undermining and insulting the president.
Following the ruling, Muchadehama filed notice of an application to review the magistrate’s decision, arguing she erred in finding that the editor caused the publication.
The defence lawyers have indicated that, if unsuccessful in the High Court, they would seek referral to the Constitutional Court. — Staff Writer.
