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THE STATE

versus

EVAN MAWARIRE

IN THE HIGH COURT OF ZIMBABWE

CHIGUMBA J
HARARE; 25, 26, 28 September 2017, 11 October 2017, 29 November 2017

Assessors: 1. Mr. I Chidyausiku

2. Mr. C. Gweme

Criminal Trial

C Mutangadura, for the State

H. Nkomo, for the accused

CHIGUMBA J: “The only attack that is made on the settlers is that they are ‘selfish, die hard, and
reactionary. These are certainly uncomplimentary words but I do not think that they can be regarded as very much
more than that and I do not think they are the sort of words that are likely to promote feelings of hostility, or to
expose people to contempt, ridicule or disesteem. They would never, for example, found an action for damages for

defamation…” See R v Mugabe1.

The offence of overthrowing or attempting to overthrow a government by
unconstitutional means is a serious offence that carries a penalty of up to twenty years
imprisonment. Unconstitutional means for purposes of this offence is defined as any process
which is not provided for in the Constitution and the law. This definition implies, in my view,
that the functions of government can be taken over in terms of the law, and that a constitutional
government can be overthrown, by constitutional means. It is arguable that a general election,
which may be provided for in terms of a Constitution and the law, if it results in a change of
government, can be said to have resulted in the taking over of government functions by a
different group, and may be defined as a legitimate or constitutional means by which a
government elected and formed in terms of the same constitution, may be removed.
1
1965 (1) SR 514 @ 518 E-F p10 Accused’s heads of argument. A
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It is imperative that the State, in bringing such charges against an accused person,
carefully substantiate, by way of cogent evidence, which ‘unconstitutional means’ will have been
used in the commission of the offence. If the means used are merely an exercise of a right
conferred on the accused in terms of the Constitution, then there can be no ‘unconstitutional
means’ to speak of. This case hinges on the sufficiency, and veracity of the evidence adduced
against the accused at the close of the State case. The accused contends that the essential
elements of the charges against him have not been proved. The State has urged the court to find
that the essential elements of the charges against the accused person have ‘either been proved or
shown to be probable’2
The accused was charged with two counts of subverting a constitutional government as
defined in s 22 (2) (a), of the Criminal Law (Codification and Reform) Act [Chapter 9:23], (the
Code) as well as two counts in the alternative, of Incitement to commit public violence as
defined in s 187 (1) (a), as read with s 36 (1) of the code.

COUNT 1
It was alleged that, during the period April to July 2016, through the social media and
the internet, he, unlawfully and with the intention of overthrowing the government of Zimbabwe,
organized or set up, or advocated or suggested the organization or setting up of various internet
accounts styled Hashtag This Flag on Twitter, Instagram, Facebook and WhatsApp platforms
through which he communicated subversive ideas and incited persons unknown with the
intention of overthrowing or attempting to overthrow the Government by unconstitutional means
or usurping the functions of government, or coercing or attempting to coerce the government
through boycotts, civil disobedience or passive resistance to law, realizing that there was a real
risk or possibility that his actions might subvert the constitutional government of Zimbabwe.

That is to say, on or about 6 July 2016, he posted two separate videos of himself on
electronic media urging all Zimbabweans to participate in what he termed;-“shutting Zimbabwe
down”, inviting “all workers to stay at home”, urging “parents not to take their children to
school”, accusing the government of enacting laws willy-nilly, inciting commuter omnibus
2
P 4 state’s submissions to the accused’s application for discharge at the close of the state case- R v Mtembu on the
meaning of degree of proof-line between proof by a balance of probabilities and proof beyond a reasonable doubt-
inferences to be drawn from facts.
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operators not to ferry people, whilst urging all the people who saw the video to spread the
message and the video to other citizens thereby causing boycotts, civil disobedience or resistance
to law, realizing that there was a real risk or possibility that his actions of setting up internet
accounts on Twitter, and Facebook, and electronic media such as WhatsApp and Instagram for
connecting people in disseminating subversive views and ideas to the public to engage in
boycotts and civil disobedience knowing or realizing that such activities might paralyse
government services, operations and all electronic activity thereby making the country
ungovernable through the chaos and coerce government to abdicate its elected responsibility and
be overthrown or unlawfully removed from power thereby subverting the constitutional
government of Zimbabwe.

ALTERNATIVELY
Incitement to commit public violence, in that, during the period April to July 2016, he,
through social media and the internet, unlawfully and with the intention to overthrow the
Government of Zimbabwe he did all those things set out in the main charge, as well as causing
disturbances in Bulawayo and Manicaland where unknown people barricaded roads, damaged a
police vehicle and burnt some tyres in Harare province while public violence erupted in various
areas of Bulawayo resulting in a number of properties being damaged, including police vehicles
and violence also erupted in Chipinge.

COUNT 2
It was alleged that during the period 6 July to December 2017 and on divers occasions,
the accused, through social media and the internet, unlawfully and with intent to overthrow the
government of Zimbabwe, organized or set up, or advocated, urged or suggested the organization
or setting up of various internet accounts styled Hashtag this Flag on Twitter, Instagram,
Facebook and WhatsApp platforms through which he communicated subversive ideas to
unknown persons, with the intention of overthrowing or attempting to overthrow the government
of Zimbabwe by unconstitutional means or usurping the functions of the government or coercing
or attempting to coerce the government, boycott, civil disobedience or passive resistance to law,
realizing that there was a real risk or possibility that his actions might subvert a constitutional
government of Zimbabwe.
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That is to say he posted on the internet two separate videos in which he asked viewers
and listeners to pass on to other citizens and in which he uttered the following words:-

“…on Wednesday the 13th and Thursday the 14th of July we ae shutting down Zimbabwe again
we are shutting down again you cannot carry on doing that to us…on 13 and 14 citizens join me
let’s make history and make this government change…on the 6 th of July last Wednesday the
citizens got together and we made a statement to our government together as citizens…if you
don’t respond to us we are going to shut down again. Citizens I want from you a favour, I know
that we did this together last week, lets prepare to do it again, I plead with you citizens this is
the only way that this government will understand. This coming Thursday, Wednesday,
Wednesday the thirteenth and Thursday the fourteenth. I will speak to you some more I will
come back to you again but let’s do this again, I know it’s tough but we must be tougher, stay at
home, forward this video to as many people as you can…”

Thereby causing a boycott, civil disobedience or passive resistance to law, realizing that
there was a real risk or possibility that his actions of setting up internet accounts for connecting
people in disseminating his subversive views and ideas to the public in order to paralyse
government services, operations and all economic activity to coerce the government to abdicate
its elected responsibility and be overthrown or unlawfully removed from power thereby
subverting the constitutional government of Zimbabwe.

ALTERNATIVELY
Incitement to commit public violence in that, he did all the things outlined in the main
charge, as well as inciting unknown persons to act in concert with each other, to forcibly disturb
the peace to a serious extent, and to disturb the order or security of the public and invade the
rights of others.
According to the outline of the State case, the accused uploaded videos of himself on
electronic media, in which he urged the Zimbabwean people to revolt against and overthrow a
constitutionally elected government. He urged all Zimbabweans not to go to work. He
encouraged members of the public to resist the government policy of introducing bond notes, and
SI 64-2016, and to defy visibility of traffic officers on public roads. On the 6th of July 2016,
following the incitement to overthrow the government which was advocated for and organized
by the accused, some people from Epworth, Mabvuku, Mufakose, Budiriro and Marimba suburbs
barricaded Chiremba road, Mutare road, Muonde road and roads leading to Budiriro and
Marimba from the Central Business District, with stones, logs, and burning tyres. The accused’s
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incitement caused some people not to carry out their day to day duties due to his unlawful
campaign to shut down the country.
In Epworth suburb a group of people found by the police barricading the roads fought
with the police who wanted to arrest them, resulting in two police officers being injured. The
protestors forcibly took one police helmet and a baton stick preventing the police from executing
their constitutional mandate. A police Toyota Hilux motor vehicle registration number ZRP 452F
was stoned in an attempt by the mob to subvert a constitutionally elected government. The
vehicle sustained a shattered windscreen. On 7 and 9 July 2016, the accused attempted to usurp
the functions of the government and to overthrow it. He went on social media and thanked those
who had participated in the public violence and stay away in the following words;-

“…Congratulations fellow citizens, well done…shut down Zimbabwe 2016 is already a success a
few hours to go before we start zvatovharana…kana manga musati manyatsofunga kuti
murikuenda kubasa kana kuchikoro make a decision now nekuti masara mega…makorokoto well
done…we are done with them”. Translated to mean; “congratulations fellow citizens, well
done…shut down Zimbabwe 2016 is already a success a few hours to go before we start it is all
done…if you had not clearly thought about whether to go to work or school make a decision now
because you are left behind alone. Congratulations well done we are done with them”.

It was alleged that the accused urged Zimbabwean citizens to prepare and participate
actively in another violent demonstration scheduled for 13 and 14 July 2016 as an attempt to
coerce the government out of power. It was alleged further that, using the same modus operandi,
during 6 July to December 2026, the accused incited Zimbabweans not to go to work via
electronic media and subsequently thanked them for blocking roads and fighting against the
police.

The Law

The application for discharge at the close of the state case was brought on behalf of the
accused in terms of s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07]; (“the
CPEA”) which provides as follows;-

“…if at the close of the case for the prosecution the court considers that there is no evidence that
the accused committed the offence charged in the indictment, summons or charge, or any other
offence of which he might be convicted thereon, it shall return a verdict of not guilty.”
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It was submitted that, where there is insufficient evidence to prove the state’s case, the
court has no option, no discretion, it should of necessity return a verdict of not guilty.
The court was referred to the case of S v Kachipare3, which interpreted s198 (3) of the
CPEA as follows;-
“So far as the law in Zimbabwe is concerned, there is no longer any controversy as to whether a
court may properly refrain from exercising its discretion in favour of the accused. If at the close
of the case for the prosecution, it has reason to suppose that the inadequate evidence adduced by
the state might be cemented by the defence evidence, it must acquit”.

It was contended that, if there is no evidence upon which a court acting carefully might
properly convict, it should return a verdict of not guilty. It is trite that a court should discharge at
the close of the state case where;-
(a) There is no evidence to prove an essential element of the offence. See AG v Bvuma &
Anor 1987 (2) ZLR (S) 102
(b) There is no evidence which a reasonable court, acting carefully, might properly convict.
See AG v Mzizi 1991 (2) ZLR @ 323B
(c) The evidence adduced on behalf of the state is so manifestly unreliable that no reasonable
court can safely act upon it. See AG v Tagwirei 1997 (1) ZLR 575 @ 576 This test was
applied in the case of S v Tsvangirai & Ors4

The two main charges, of subverting or attempting to subvert a constitutional government

are provided for in s 22(2)(a) of the Code which provides that;-
22 Subverting constitutional government
(1) In this section
“coercing” means constraining, compelling or restraining by
(a) physical force or violence or, if accompanied by physical force or violence or the threat
thereof,
boycott, civil disobedience or resistance to any law, whether such resistance is active or passive;
or
(b) threats to apply or employ any of the means described in paragraph (a);
“unconstitutional means” means any process which is not a process provided for in the
Constitution and the law.
(2) Any person who, whether inside or outside Zimbabwe

3
1998 (2) ZLR 271 (H) 275

4
2003 (2) ZLR 88 H
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(a) organises or sets up, or advocates, urges or suggests the organisation or setting up of, any
group or body with a view to that group or body
(i) overthrowing or attempting to overthrow the Government by unconstitutional means; or
(ii) taking over or attempting to take over the Government by unconstitutional means or usurping
the functions of the Government; or
(iii) coercing or attempting to coerce the Government”

It was submitted on behalf of the accused person that, that, in order for a person to be
convicted of this offence he/she must;-
1. Inside or outside Zimbabwe
2. Organize or set up, or advocate, urge, or suggest the organization or setting up of, any
group or body;
3. With a view to that group or body-
4. (a) overthrowing or attempting to overthrow the government by unconstitutional means;
or
(b) taking over or attempting to take over government by unconstitutional means or
usurping the functions of government;- or
( c) coercing or attempting to coerce the government.

Unconstitutional means are defined as any process which is not provided for in the
Constitution and the law. I agree with the submission that this definition implies that the
functions of government can be taken over by constitutional means.
In the alternative the accused is charged with the crime of attempting to commit public
violence in terms of s 187(1) (a), as read with s 36 (1)(a), which provides that;-
“36 Public violence
(1) Any person who, acting in concert with one or more other persons, forcibly and to a serious extent
(a) disturbs the peace, security or order of the public or any section of the public; or
(b) invades the rights of other people;
intending such disturbance or invasion or realising that there is a real risk or possibility that such
disturbance or invasion may occur, shall be guilty of public violence and liable to a fine not
exceeding level twelve or imprisonment for a period not exceeding ten years or both.”

The following factors are to be taken into account in determining the seriousness of the
alleged public violence;-

(2) In determining whether or not a disturbance of peace, security or order or an invasion of rights is
sufficiently serious to constitute the crime of public violence, a court shall take into account all
relevant factors, including the following
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(a) the nature and duration of the disturbance or invasion;
(b) the motive of the persons involved in the disturbance or invasion;
(c) whether the disturbance or invasion occurred in a public place or on private property;
(d) whether or not the persons involved in the disturbance or invasion were armed and, if so, the nature
of their weapons;
(e) whether or not bodily injury or damage to property occurred in the course of or as a result of the
disturbance or invasion;
(f) whether or not there was an attack on the police or on other persons in lawful authority;
(g) the manner in which the disturbance or invasion came to an end.

The following shall be considered as aggravatory;-

(3) It shall be an aggravating circumstance if, in the course of or as a result of the public violence
(a) there was an attack on the police or on other persons in lawful authority; or
(b) bodily injury or damage to property occurred; or
(c) the person who has been convicted of the crime instigated an attack on the police or other persons in
lawful authority or instigated the infliction of bodily injury or the causing of damage to property.
[my emphasis].

It was submitted on behalf of the accused that he did not, during the material period
attempt to act in concert with anyone, and that, he did not, forcibly, and or to a serious extent;-
 Disturb the peace, security or order of the public or any section of the public; or
 Invade the rights of other people; or
 Intend such disturbance or invasion
It was contended that the accused person disseminated a message of PEACE at all times.

The Evidence
In order to prove its case, the State relied on a Video Compact Disc, which was
produced as exh 1, and which had eight eyewitnesses, namely;-
1. Edmore Muchineripi Runganga
2. Jeremiah Murenje
3. Muvhuro Richard Mhlanga
4. Innocent Chipangura
5. Crispen Makedenge
6. Patrick Romeo Moyo
7. Lawrence Njodzi
8. Marshall Dube
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The evidence of witnesses 3, 7 and 8 was admitted in terms of s 314 of the CPEA,
thereby dispensing with the need for those witnesses to testify in court. Their evidence was
admitted as it appears in their statements to the police. Exhibit 1 the video compact disc raises
the contentious issue of whether or not the contents of the words of the accused person which are
captured there were subversive or capable or calculated to incite members of the public to
commit public violence. It was submitted that the words of the accused as they are recorded in
exh 1 be given their literal meaning. Four videos which are on the disc were played in open court
and a properly transcribed version of these videos now forms part of the record which is before
the court.
It was submitted on behalf of the accused that there is no evidence in any of these
videos that he incited anyone to engage in violence on unconstitutional behaviour. It was
submitted that accused said;-
“Wednesday 6th of July we are shutting down…we are staying at home…all workers, all school children
are not going to school…High School students do not go…teachers do not go…civil servants, you have not been
paid do not go to work…to commuter bus operators, do not ferry people, commuters stay at home. Indians, keep
your shops closed, white people, keep your shops closed, black people keep your shops closed…”

Did the State discharge the onus on it of proving, beyond a reasonable doubt, beyond a
shadow of a doubt, that this shut down which was advocated for by the accused amounted to
subverting a constitutional government and or to inciting public violence?
It is correct that in the first video the accused can be heard clearly saying, amongst other
things;-
“…but remember no violence, no fighting, let us keep it truthful to this government to let them know that
we want to build a different Zimbabwe until they understand that…keep praying for this country…”

In the second video accused said, amongst other things;-

“We love Zimbabwe too much to keep watching it burn, to keep watching it go down. So there shall be no
violence, there shall be no marching, there shall be no protesting in the towns or roads…”.

In video 3 the accused was commenting on a video that was going around in social media
of the police brutally assaulting some people. He concluded this video by reminding people to
pray for Zimbabwe. In video 4 accused was criticizing arbitrary arrests of those who criticized
government. He registered his displeasure with the introduction of bond notes by government;
the rampant corruption by ministers; the ban on the importation of certain goods imposed by S I
64/2016; the general unemployment in the country.
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It was submitted on behalf of the accused that, in all four videos his message on non-
violent confrontation of government (constitutional means) was clear, as well as his message of
peace and respect for the law, sprinkled with his overall acknowledgement of the Supremacy of
the Lord almighty, as a Pastor, a man of God. It was submitted that the accused expressed his
thoughts in a lawful manner and that, he never mentioned or wanted to remove the government
by unconstitutional means, or to incite or incite anyone to commit acts of public violence. The
court was referred to the following Constitutional provisions;-
S 58 (1);- Every person has the right to freedom of assembly, association, and the right
not to assemble or associate with others.
S 59 The right to demonstrate and petition ;- Every person has the right to demonstrate
and to present petitions, but these rights must be exercised peacefully.
S 61 (1) (a) Every person has the right to freedom of expression, which includes;-
freedom to seek, receive and communicate ideas and other information.
S 67 (2) (d);- Every Zimbabwean citizen has the right to participate, individually or
collectively, in gatherings or groups or in any manner, in peaceful activities, to influence,
challenge or support the policies of the government or any political or whatever cause.
It was submitted on behalf of the accused that it was a violation of the abovementioned
rights which are enshrined in the Constitution to criminalise the accused’s conduct. It was
contended that the accused has a right to peacefully challenge government policies, and to
criticize them, and that his words did not promote feelings of hostility or incite anyone to commit
public violence. Viva Voce evidence was led from witnesses 1, 2, 4, 5 and 6. Detective Chief
Inspector Edmore Muchineripi Runganga of the Zimbabwe Republic Police is currently stationed
at Criminal Investigation Department, Law and Order Harare. He told the court that the offence
was committed when the accused urged Zimbabweans not to go to work. He said that the
accused was responsible for the disturbances which took place on the 6 th of July. It is common
cause that the video in which the accused congratulated his fellow Zimbabweans, video 1 was
posted before 6 July 2016. It is further common cause that in this video the accused said that shut
down Zimbabwe was already a success a few hours before it was due to start, and that
Zimbabweans should not go to work the following day. Logically the accused could not have
been congratulating anyone for the violent public disturbances, and destruction of property
which took place the following day before it transpired.
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We did not hear the accused person incite the citizens to stone motor vehicles and
commuter omnibuses ferrying people to work. It is also telling that none of the people who were
allegedly injured by the violent demonstrations were called to testify or even mentioned by
name. Jeremiah Murenje stated that the accused posted on the internet website U-Tube a video
which called upon Zimbabweans to shut down Zimbabwe by urging them not to go to work and
calling upon parents not to send their children to school. During cross-examination, this witness
admitted that the accused did not preach violence and that, in none of the four videos does the
accused mention taking over the government. There was no evidence led by this witness, of any
intention to overthrow a government or of incitement to public violence. Innocent Chipangura
told the court that accused urged Zimbabwean citizens through social media to show displeasure
with the government policies and the economic situation, and that, this call prompted businesses
and other institutions to close, and some people committed offences and the majority of the
people stayed home. He mentioned the names of three people who were arrested in Chipinge for
stoning a bus. He did not call any of the three to testify. No nexus was established between the
accused’s utterances and this violence in Chipinge.
Crispen Makedenge told the court that he received information that the accused had made
videos in which he urged citizens to shut down Zimbabwe , and that, he received information
from Harare, Mutare, and Bulawayo that there were disturbances where roads were barricaded,
motor vehicles burnt and people not going to work. He testified that those who tried to go to
work were assaulted by a group called Hashtag this Flag led by the accused person. No one was
called to substantiate these claims. Reports from Harare, Bulawayo and Manicaland were
produced through this witness (exhibits 2, 3 and 4). The Bulawayo Report, Exhibit 3 reads, in its
first two paragraphs’-
“Events of disturbances in Bulawayo on the 6 th of July 2016 were triggered by a publicized stay
away by civil servants due to the change in the dates for their June salaries. The APEX Council
for civil servants announced that there will be a stay-away to protest government’s decision to
push their June salaries into the month of July 2016. From events that followed it is evident that
this stay away was hijacked by other civil servants’ organisations who had their own agendas of
destabilizing the country. Such organisations and individuals include Tajamuka, the controversial
Pastor Evan Mawarire of the My/Our Flag, YARD, BUPTA, BUYA, Tshiva Mubaiwa, Bulawayo
City Transit”.
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The witness admitted during cross examination that no member of Hashtag This Flag is
identified as a perpetrator of violence in any of those reports. Patrick Romeo Moyo told the court
that he was asked to assess and monitor the impact of the social media movement Hashtag This
Flag. He deployed his officers to gather evidence. It was reported to him that in Bulawayo
commuter omnibuses were not operating, a number of supermarkets were not open and schools
were closed, that there were incidents of tire burning on Khami road. There was looting and
damaging of shops. A police vehicle was damaged when the police tried to contain the violence.
There was no independent corroboration of these reports or any other witness called to verify
their veracity. The witness did not know whether it was the accused’s videos which had caused
the people to commit violence. He could not say which of the one hundred and thirty three
people arrested were members of Hash Tag this Flag. He did not bring any of the arrested people
to tell the court whether they perpetrated violence at the accused’s instigation.
It was submitted on behalf of the accused person that the evidence of the 3 rd, 7th and 8th
witnesses did not implicate him in the slightest or establish a nexus to the commission of any of
the charges brought against him. It was contended that the State failed to prove all the essential
elements of the charges against the accused, that there is insufficient evidence on which a
reasonable court, acting carefully, might convict. (AG v Bvuma Supra, S v Tsvangirai supra).
The State is not obliged to prove a prima facie case against an accused person. It must adduce
evidence to establish its case beyond a reasonable doubt, which has been interpreted to mean;
‘beyond a shadow of a doubt’. It was submitted that the accused punctuated his videos with
hypocritical messages urging people not to march or commit public violence (p 3 par 16 states
heads of argument). Does the evidence show that the accused was speaking with a forked
tongue? Does the evidence show that the accused said one thing but meant another, that he had a
secret code with his followers to misinterpret his message of belief in God, in praying for peace,
in criticizing government policies, as a secret message to violently overthrow the government.
It was submitted on behalf of the state that the degree of evidence required is Prima
Facie. According to the Oxford Dictionary of Law, a prima facie case is one which has been
established on the face of things, at first appearance. It is a case which has been supported by
sufficient evidence for it to be taken as proved should there be no adequate evidence to the
contrary. It is a prosecution case that is strong enough to require the defendant to answer it.
Prima facie evidence is defined as evidence of a fact that is of sufficient weight to justify a
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reasonable inference of its existence but does not amount to conclusive evidence of that fact. The
court was referred to the case of R Mtembu5 as authority for the proposition that prima facie
evidence will suffice. In that case, it was said that;-
“But in any event it is not clear to me that the Crown’s obligation to prove the appellant’s guilt
beyond a reasonable doubt is required to negative beyond reasonable doubt all pieces of evidence
favourable to the appellant. I am not satisfied that a trier of fact is obliged to isolate each piece of
evidence in a criminal case and test it by the test of reasonable doubt. If the conclusion of guilt
can only be reached if certain evidence is accepted or if certain evidence is rejected, then a
verdict of guilty means that such evidence must have been accepted or rejected, as the case may
be, beyond a reasonable doubt. Otherwise the verdict could not properly be arrived at. But
that does not necessarily mean that every factor bearing on the question of guilt must be treated
as if it were a separate issue to which the test of reasonable doubt must be distinctly applied. I am
not satisfied that the possibilities as to the existence of facts from which inferences may be
drawn are not fit material for consideration in a criminal case on the general issue of whether
guilt has been established beyond a reasonable doubt, even though the existence of each such
fact were to be treated by the test of reasonable doubt, mere probabilities in the Crown’s favor
would have to be excluded from consideration and mere probabilities in favor of the accused
would have to be assumed to be certainties. Circumstantial evidence, of course rests
ultimately on direct evidence and there must be a foundation of proved or probable fact from
which to work. But the border-line between proof and probability is largely a matter of degree,
as is the line between proof by a balance of probabilities and proof beyond a reasonable doubt.
Just as a number of lines of inference, none of them in itself decisive, may in their total effect
lead to a moral certainty, (Rex v De Villiers 1944 AD 493 at p.508), so, it may fairly be
reasoned, a number of probabilities as to the existence of the facts from which inferences are to
be drawn may suffice, provided in the result there is no reasonable doubt as to the accused’s
guilt. That was the view, I think, which underlay the use of the words either proved or shown to
be probable in Rex v Mthlongo 1949 (2) SA 552 (AD) at p. 558, and see Wigmore on evidence,
secs, 216 and 2497. Although therefore, I agree with Brother MURRAY in attaching no credence
whatsoever to the evidence given by No. 2 accused on the point in question, I do not wish to be
taken to be agreeing that the use of those words had to be disproved beyond a reasonable doubt
before the appellant could be properly convicted”. [my emphasis].

It seems to be that the State’s reliance on the abovementioned case, and its urging of the
court to be persuaded that the degree of proof required is that of ‘proved or probable fact, is a
tacit admission that the evidence against the accused in circumstantial, at best. The State referred
the court to the case of CR v Njenje & Ors6 as authority for the proposition that if a conspirator
incites other conspirators to commit a crime, he may be liable to conviction as a principal
offender even though he is not present when the crime is committed, and or if it is proved that he
otherwise aided and abetted in the actual commission of the crime. This case is distinguishable
from the circumstances before us for the simple reason that, not a single witness was called to
5
1950 (1) SA 670 (AD) @ pp679-80

6
1966 (1) (SRA)
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testify as a perpetrator of violence, and no evidence was adduced to establish that the
perpetrators of violence acted on the strength of any urging to do so by the accused. None of the
arrested citizens implicated the accused as having incited them to violence. In fact one of the
State witnesses told the court that they all refused to testify against the accused person. It has not
therefore been proved or even shown to be probable that the violence started on the accused’s
instigation.
The court was referred to the case of R v Dick7, as authority for the proposition that the
question of whether or not the criminal design was capable of being executed is not an essential
element of the offences charged. In this case it was held that in a charge of incitement if the
means suggested is also inadequate to accomplish the crime incited, the conviction of incitement
is not precluded. The headnote reads as follows;-
“On a charge of inciting a man to murder a woman by the administration of D.D.T., it
appeared that the accused had incited the man to procure a certain herb and administer it to the
woman in the hope that it would cause her to return to the inciter: if that failed he incited the man
to murder her by b the administration of a supply of D.D.T which he gave the man. It was
held that neither the fact that the incitement to murder was conditional on the prior
treatment failing, nor the fact that the quantity of D.D.T supplied inadequate to achieve thus
purpose, precluded the court from convicting the accused of incitement to murder”.

It is this court’s considered view that again, this case is distinguishable from the one
before us for the simple reason that in this case there is no one who testified before us that the
videos recorded by the accused incited them to commit acts of public violence. Did the accused,
in any manner, communicate with other citizens, intending to persuade or induce them to commit
a crime, or realizing that there was a risk of the citizens committing a crime? That is the first
question which the court is required to answer in order to determine if the accused person is
guilty of the two main charges. The main charges are overthrowing or attempting to overthrow,
and or takeover a government by unconstitutional means, and coercing or attempting to coerce
the government. It is this court’s view that the state failed to prove the essential element of
‘unconstitutional means’. The accused used his Constitutionally guaranteed rights to freedom of
assembly and association with others, his right to demonstrate and petition, his right to freedom
of expression, to seek, receive and communicate ideas , an his right to participate in gatherings or
in a group to influence, challenge and or support the policies of government. These rights area
not absolute. The Constitution says that they must be exercised peacefully. Unconstitutional

7
1969 (3) SA 267 (R)
15
HH 802-17
CRB 75/17
means is defined as any process which is not provided for in the Constitution and the law. In
video 1 the accused rebuked violence and urged his fellow citizens to continue to pray for this
country. In video 2 accused can be clearly heard saying there shall be no violence, there shall be
no marching, there shall be no protesting in the towns or in the roads. In video 3 accused
reminded citizens again to keep praying for Zimbabwe. In video 4 he criticised government
policies of introduction of bond notes, corruption among ministers, unemployment, and the ban
on the importation of goods imposed by SI 64-2016.
We find that, in all four videos which the state seeks to rely on, the accused used
constitutionally guaranteed rights, and that, he did not exceed the limitation on those rights, he
never advocated that those rights be exercised in anything other than a non-violent way. He
urged passive resistance, a stay away. He urged PRAYERS FOR PEACE. How can prayers for
peace be considered unconstitutional means of removing a constitutional government? His
criticism of government policies is permissible in terms of the Constitution, and there is no
evidence that he urged a violent removal of the government. Sure his aim was to cripple
government operations, but he very clearly said in his videos that this was a way of getting the
government to LISTEN to its citizens, which he accused it of not doing. There is no evidence on
which this court might find that the accused has been proved to have used unconstitutional
means, or on which the court might find it probable that the accused used unconstitutional
means, or that he intended or tried to overthrow a constitutional government.
Did the accused, forcibly and to a serious extent, acting in concert with others disturb the
peace, security and order of the public and or invade the rights of other people? This is the
second question raised by the two alternative charges? The essential elements of the alternative
are; charges, disturbing the peace, invading the rights of others, intending such disturbance or
invasion were again in my view not proved by the State. We have found that the accused
preached peace and repeatedly told his audience not to resort to violence. This means that the
element of intention was not proved, or even recklessness. A look at all the relevant factors set
out in s 36 of the CODE, which sets out the offence of public violence, will bear out this
conclusion, or finding. The nature and duration of the invasion or disturbance has been outlined
above. The motive of the persons involved in the disturbance was not clear from the evidence
adduced. Some witnesses attributed the disturbance to a strike over salaries by civil servants.
None of those citizens who were arrested pointed a finger at the accused as having incited them.
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None of the citizens arrested were card carrying members or even suspected members, of
Hashtag this Flag, an organization whose existence was attributed to the accused. In fact various
other organisations such as Tajamuka were blamed for the disturbances in some provinces.
The disturbances occurred in public places [s 36 (2) (c)]. The persons involved were
allegedly armed with stones which they used to pelt buses, commuter omnibuses, police vehicles,
and to barricade roads with. Bodily injury and damage occurred and there was an attack on the
police and on police property which is considered aggravatory. None of these findings in my
view make up for the deficiency in the evidence presented before the court, to show or establish
a nexus between the four videos made and posted by the accused and the resultant disturbances
on the ground in different provinces. I do not accept the submission that the accused’s videos
created a pervasive environment for violence as a natural probable consequence of urging people
to boycott. I say so because in all his videos accused urges prayers for peace. In some videos he
expressly advocates against violence. Passive resistance cannot be said to be a precursor to
violence. It is the opposite of violence. Resistance to law is a permissible constitutional right, as
long as it is done peacefully. That is the only limitation.
In conclusion, we find that the accused did not urge citizens to overthrow the government
using violence or unconstitutional means. The State failed to prove all the essential elements of
the main and alternative charges. The witnesses testimonies fell short of establishing evidence on
which a reasonable court, acting carefully, might properly convict. The evidence appeared in
some instances to be purely speculative, and conjecture, rather than fact, even probable fact. In
the interests of the administration of justice, the State should not be allowed to bolster its case by
putting accused to his defence. On the two main charges of subverting a constitutional
government as defined in s 22(2)(a) of the CODE, the accused is discharged at the close of the
state case and found Not Guilty and acquitted. On the two alternative charges of incitement to
commit public violence as defined in s 187(1)(a) as read with s 36 (1) (a) of the CODE, the
accused is discharged at the close of the state case and found Not Guilty and acquitted.

The Prosecutor General’s, state’s legal practitioners

Messrs Mhishi & Nkomo, accused’s legal practitioners