The National Prosecuting Authority has won the first round in what promises to be a long legal process in its attempt to prosecute MDC-Alliance deputy chairperson Job Sikhala over allegedly subversive statements he made last year.
A Supreme Court judge, Justice Lavender Makoni, has reinstated the authority’s application to seek leave to appeal against a High Court ruling that Sikhala did not have to be tried on the charges.
The next step is another Supreme Court judge deciding whether or not the authority can appeal. If that judge rules it can, then a bench of three Supreme Court judges will hear the appeal. If the authority wins its appeal then Sikhala will go to trial, probably before a magistrate.
Sikhala was acquitted on a technicality by Masvingo High Court judge Justice Garainesu Mawadze after his defence team led by Ms Beatrice Mtetwa made an application for exception, that is a dismissal on a point of law, on the subversion charges.
In upholding the exception to the charges by Sikhala Justice Mawadze made a finding that the politician’s alleged utterances, even if proved to be true, disclosed no offence.
The National Prosecuting Authority then sought leave to appeal that legal finding before the Supreme Court but necessary papers were missing in the application and were not brought to the court in time so the application fell away.
Mr Edmore Makoto, appearing for the Prosecutor General’s office before Justice Makoni said there had been problems getting a copy of the court record from Masvingo, where the High Court was sitting when it heard Mr Sikhala’s original application, and then the Covid-19 lockdown delayed matters further.
Ms Beatrice Mtetwa, appearing for Sikhala, said the State had done nothing for three months and the court should therefore favour individual liberty.
Reinstating the application to seek leave to appeal, Justice Makoni found that among other issues the matter raised an important jurisdictional question, which is how far can a judicial officer go, in exception proceedings, in determining the meaning to be ascribed to words in a charge sheet.
“A reading of the charge sheet reflects that it follows the wording of the statute and as framed discloses an offence,” she said. “The critical issue is how the words allegedly uttered are interpreted in view of the totality of evidence that might be led by the State. I should hasten to add that a stand-alone interpretation of the words allegedly uttered . . . may not necessarily give a true meaning of the words and the import thereof in relation to the allegations.”
Justice Makoni said it was the legal finding of the High Court that the words did not disclose an offence that will be tested on appeal. She, therefore, ruled that there are prospects of success in the actual application to seek leave to appeal and so reinstated that application.
Justice Mawadze had acquitted Sikhala saying the court could not put the politician on trial based on semantics.
He also said Sikhala did not contravene Section 22 of the Constitution as the State had built a case against him basing on statements taken out of context.
Justice Mawadze also ruled that the prosecution had failed to understand the difference between overthrowing a president as an individual and a Government.
In the defence outline and before the acquittal, Ms Mtetwa argued that her client could have been referring to the removal of the President through a legal process like impeachment and not necessarily overthrowing through violence means.