Chief Court Reporter
Convener of the July 31 illegal street protests that flopped, Jacob Ngarivhume, yesterday had his High Court appeal for bail pending trial on charges of inciting the public to commit violence, thrown out.
The Transform Zimbabwe leader, called for street protests against the Government and got support from the main opposition party and civil society among others before he was arrested and charged with inciting the public to commit violence.
A Harare magistrates’ court denied Ngarivhume bail saying if released he would continue promoting violent protests and urge the public to break a coronavirus lockdown.
His lawyer Mr Moses Nkomo contested the magistrate’s decision at the High Court despite conceding to having his client placed on remand at the initial remand hearing.
In terms of the law, a court will only place an accused on remand where the State has submitted facts which show that there is a reasonable suspicion that the suspect has committed the offence of which he or she stands charged.
And none-challenge of placement on remand before the trial court ceases to be an issue on appeal. Ngarivhume’s lawyer did not contest the remand.
To this end, Justice Tawanda Chitapi ruled that Ngarivhume accepted the allegations levelled against him, which raised suspicion that he committed the offences charged and the propriety of the remand was not in issue.
“The placement of the appellant on remand was the precursor or the first step before bail (step 2) could be applied for,” he said. “That said it would be incompetent to raise issues of propriety of the remand placement of the appellant on appeal as indeed his counsel attempted to do during the bail application before the remanding magistrate.”
The judge upheld the magistrate decision ruling that defence claims of misdirection could not be sustainable given the specific finding of the (lower) court that the demonstrations would likely be violent were well founded.
He said an appeal against a judgment should be directed at attacking the order of the court.
“The judgment of the learned magistrate was to refuse bail on the basis of likelihood of the appellant endangering the safety of the public order or undermine the public peace and security,” he said.
The defence even failed to propose a condition that would have ensured that Ngarivhume would not be party to the protests or that he would not continue to engage in incitement in the manner for the which he had been arrested—to persuade the court to free him on bail.
Thus, the judge endorsed the prosecution fears that the July 31 demonstrations were likely to be violent because they were to be held in the spirit of “a war” and “enough is enough” atmosphere.
On appeal, the defence also sought to argue that the planned protest day had passed, but Justice Chitapi ruled that this was a new circumstance should be best taken back to the magistrates court for consideration.
“It is not a matter I can properly consider on appeal,” he said while dismissing the appeal.