EXPLAINER ON ONGOING CASE: STATE V. JAMESON TIMBA & 76 OTHERS HREP5355-5433/24 MAKOMBORERO CHITSA 1.
This report provides an update on the ongoing case of State v. Jameson Timba & 77 Others.
The case initially involved a total of 78 accused persons. For the rest, trial commenced earlier.
However, the 4th accused person’s trial is yet to commence after she was granted a separation of trial due to her unavailability as she was seriously injured at the time of her arrest.
2. Trial commenced in respect of 77 accused persons. The individuals were initially charged with two offenses:
i) Participating in a gathering with the intent to promote public violence, breaches of peace or bigotry as defined in Section 37(1) A of the Criminal Law [Codification and Reform] Act [Chapter 9:23], hereinafter referred to as the Code.
ii) Disorderly conduct as defined in Section 41 (A) of the Code as read with Section 196 (A) of the Code.
3. The state led its evidence from a total of nine witness and proceeded to close its case.
Following the conclusion of the state’s case, the defense team made an application for discharge at the close of the State case, in terms of Section 198(3) of the Criminal Procedure and Evidence Act [Chapter 09:07].
4. At the close of the state’s case, the court determined that there was insufficient evidence to sustain the charge of disorderly conduct.
All 77 accused persons were subsequently acquitted in respect of the second charge, that of disorderly conduct.
5. The court emphasised that the scene of the alleged offence is a private gathering.
As such, it is therefore impossible to charge persons with disorderly conduct wherein it is common cause that they were at a private residence.
The essential element of the offense being that the conduct is committed in a public place or a place that the general public has access to.
In the courts words, “the charge of disorderly conduct in a public place simply falls away”.
6. However, in respect of the first charge of participating in a gathering with intent to promote public violence, breaches of peace or bigotry, only 12 of the accused were discharged, leaving 65 individuals to be put to their defence.
In respect of the 12 that were discharged, the court conceded that indeed there was a possibility of a dragnet arrest and those who had expressly removed themselves from the scene in their defence outlines were entitled to their discharge.
7. The court found that the state had provided sufficient prima facie Jameson Timba evidence to proceed with the charge of unlawful gathering against 65 of the accused individuals.
The case is now at the stage where the 65 accused individuals must present their defence against the charge of participating in a gathering.
8. The court’s decision to proceed with the unlawful gathering charge against the 65 accused persons indicates that there is a case to answer based on the evidence presented by the state.
9. The defence is now tasked with challenging the state’s case and demonstrating that the gathering was lawful, did not pose a threat to public order and or that the accused were not part of any unlawful conduct.
10. The key legal issue at this stage of the case is whether the gathering in question was unlawful under Zimbabwean law; whether the gathering posed a real or perceived threat to public peace and safety; whether each of the 65 accused persons can be individually linked to the charge, and whether their actions contributed to any alleged breach of public order.
The 65 accused persons will now present their defence in court, the aim being to show that the state has not and will under no circumstances be able to meet the burden of proof required to sustain a conviction.
Trial continuation was set for T hursday the 5th of September 2024.
*About the writer: Makomborero Chitsa is a human rights lawyer practicing under the law firm Tsunga Law International and is contactable on makomborero@ tsungaIawinc.africa
