A judge of the High Court of Zimbabwe which sat in Masvingo yesterday said a President, including President Emmerson Mnangagwa, can be removed from power before the end of his term even against his wishes, saying the Constitution of Zimbabwe actually had two provisions for that.
Justice Garainesu Mawadze cited the removal of the late former President Robert Mugabe in 2017 as one such case, as he heard submissions from the State and defense in the trial of MDC deputy national chairperson Job Sikhala for treason.
Justice Mawadze further said the State failed to prove a prima facie case that Sikhala, indeed, wanted or planned to unconstitutionally overthrow President Emmerson Mnangagwa and or the government.
Sikhala, who was out on $5 000 bail allegedly uttered the words, “We will overthrow President Mnangagwa before 2023” at a campaign rally ahead of a by-election in Bikita last year.
Sikhala, through his lawyer Beatrice Mtetwa, applied for exception to the charge, arguing that the charges were vague, meaningless and did not establish the essential elements recognised by the law.
Mtetwa argued at the start of the trial that Sikhala’s utterances did not constitute a crime and according to the charge sheet, putting the accused on trial would be unfair as nobody knows the allegations raised and according to the section under which Sikhala was being charged, he did not call for the unconstitutional removal of the President and neither did he call for the unlawful removal of government.
Prosecutor Tawanda Zvekare opposed the application for exception, saying Sikhala used the word overthrow, fight and war and had, therefore, called for a coup against Mnangagwa before elections.
In delivering judgment before a packed courtroom in an tense atmosphere, while the police and hundreds of MDC supporters were engaged in running battles outside the courtroom, Mawadze rapped the State for the “bizarre suggestion” of a coup because of the mere use of the words “war or fight”, saying the prosecution conflated the State and the President.
Mawadze added that Sikhala’s statements were taken out of context and that Zvekare had “put a spin, to the utterances”.
“The Constitution provides for the removal of an elected President before his term expires, even against his wishes. It also provides for the legal overthrow of a government. From the accused’s statements, there is no reference to the use of unconstitutional means,” Justice Mawadze said, citing the removal of late former President Robert Mugabe from power in November 2017.
He added that there were two distinct legal provisions in the Constitution to remove the President and the government from power.
“Accused is well suited to initiate constitutional processes as a legislator. I am not persuaded by the State’s submissions in that the accused’s statements relate to breaching section 22 of the Constitution. I do not find the nexus between the two. There is nothing criminal in the utterances,” the judge said.
“I find the accused’s application for exception to be meritorious as it goes to the root of the charge. It is, therefore, ordered that the exception is upheld and the accused’s not guilty plea is upheld by the court.
“It would be a sad day for judicial jurisprudence if people were tried on semantics.”
The court had to be briefly adjourned after one of the teargas canisters found its way into the courtroom, leaving everyone chocked and in tears.
Sikhala said he would instruct his lawyers to sue for $50 million the State as well as the police officers who tortured him when he was arrested.
The judgment drew wild celebrations from the crowds, who were singing and chanting party slogans.