Sikhala case proves judicial capture
SOUTHERN African Human Rights Defenders Network, a regional human rights lobby group, has released a damning report on the prolonged detention of CCC lawmaker Job Sikhala, while slamming the selective application of the law in the persecution of the outspoken opposition official.
The 28-page report, titled Justice Delayed is Justice Denied, was launched last week in the presence of Sikhala’s family. Human rights defenders says the judiciary lacks independence to decisively deal with Sikhala’s case.
“The case of Job Sikhala demonstrates the extent of selective application of the law by the courts in Zimbabwe and raises significant concerns about the lack of independence and lack of impartiality by the country’s courts in matters involving HRDs [human rights defenders], pro-democracy activists and legitimate political opponents,” the report reads.
Sikhala was arrested on 14 June 2022 for allegedly inciting violence in Nyatsime after the gruesome murder of CCC activist Moreblessing Ali, allegedly by a Zanu PF youth, Pius Jamba Mukandi.
Sikhala was later charged with obstruction of justice, in July 2022, and was convicted this week. He was fined US$600.
This is his first conviction since he embarked on his political career despite having been arrested more than 60 times.
It is against this background that the report highlighted that the state and the courts should not have denied him bail.
“Bail is a fundamental right as provided for in section 50(1) (d) of the Constitution of Zimbabwe 2013, and the Criminal Procedure and Evidence Amendment Act [Chapter 9:07].
“The country’s judicial precedence on bail is also rich. On the charge of obstructing the course of justice, Job Sikhala is being denied bail on the ground that he has a ‘propensity to commit similar offences’. This is irreconcilable with that Job Sikhala has been arrested numerous times and never been convicted,” reads the report.
The report further cites precedents in which bail was granted by magistrates to persons charged with the obstruction of justice.
“In Edmore Shoshera & Others v The State Makonese J ruled that: It is not sufficient for the state to make bold assertions that particular grounds for refusing bail exist. The assertions made by the state must be well grounded on the facts. Simply alleging that the accused may abscond, that the matter is serious, and that the accused may endanger the public or will interfere with witnesses without substantiating such allegations does not meet the threshold of compelling reasons for the denial of bail,” the report says.
Further, Justice Martin Makonese stated that: “It seems to me, that where the state makes reference to pending cases an accused is facing, as a ground for opposing bail, sufficient details regarding those cases and the status of such cases must be furnished. It is unfair for an accused to be denied bail on the ground that he has previously been charged with offences that have not been prosecuted or where charges have been dropped altogether.”
In the same case, the High Court relied on the precedent set in S v Kachigamba & Anor HH-358/15 where the judge stated that: “… thus where a litigant applies for bail the presumption is that he is entitled to bail unless the state had proven otherwise. The section being a constitutional safeguard designed to protect the citizen’s fundamental right to justice, freedom and liberty overrides all other common law and subordinate statutory provisions to the contrary. The effect of this section is to relieve an arrested person of the burden of proving he is entitled to bail, thus shifting the burden to the state to prove that there are compelling reasons justifying the continued confinement of the detainee.”
Meanwhile, during mitigation in the case that he was convicted of obstruction of justice, Sikhala addressed the court in a 10-page presentation of personal circumstances.
He castigated his tormentors and said he had no regrets.
“Those who murdered Moreblessing Ali, and those who persecute me today, may laugh for the moment, but when history chapters allow, posterity will judge me for what I truly am — a humble and obedient servant of the people. A willing instrument for the advancement of the values of ubuntu. A firm believer against impunity regardless of one’s political affiliation or status in life. A legal practitioner, being shackled for taking up the cause of his oppressed client, who died a miserable death in the most violent way imaginable,” said Sikhala.
“Let me be labelled the villain today. Let the murderers of Moreblessing Ali rejoice. Let my tormentors celebrate this pyrrhic victory. Posterity will be my judge. History chapters are replete with these kinds of oppressions. Oppressors read from the same script. I am neither the first nor the last to be nailed for seeking justice for the downtrodden. That is the only crime I ever committed. I did not seek to defeat justice.
Far from it. Justice in the eyes of the oppressor is injustice to the oppressed. If I am guilty of seeking universal justice that is accessible and applicable to all regardless of status, let the oppressors celebrate. They have won the battle, but the war will be won by the people,” he added.
During Sikhala’s address, magistrate Marehwanazvo Gofa, interrupted his speech, saying he should stick to mitigation.
“Defence, please guide your client to stick to mitigation,” she said.
But his lawyer, Harrison Nkomo, advised the magistrate that she should let him finish so that he lays across his message.