O’Donovan’s bail: How Obey Shava outclassed the State

By Daniel Chigundu

High Court Judge Justice Clement Phiri has granted US national Martha O’Donovan US$1000 bail, coupled with other stringent conditions after judging that the State’s opposing argument was weak.

O’Donovan was arrested last Friday on allegations of trying to remove a constitutionally elected government and insulting President Robert Mugabe through social media (Tweet).

The State was opposing bail, alleging that O’Donovan was likely to abscond if granted bail as she is facing a serious offence with a lengthy sentence of up to 20 years if found guilty.

Below is what Obey Shava from the Zimbabwe Lawyers for Human Rights said in court while representing O’Donovan.

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Obey Shava: My Lord the State is opposed to the leave being sought and the basis of the opposition is the affidavit by the investigating officer (IO) Detective Benias Murira which is attached to the State’s response.

My Lord the affidavit itself raises many issues. But before being specifically My Lord, to the issues being raised in the opposition, it is imperative at this stage to mention that at the end of the day this honourable court has to make a determination on three critical issues.

(1) Being that whether or not there is a risk of absconding if the applicant is admitted to bail

(2) Being whether or not the applicant is likely to interfere with witnesses or investigations should she be admitted to bail

(3) Being whether or not the applicant is likely to commit the same offences while on bail.

My Lord, I will turn to the affidavit of Detective Murira in an attempt to arrest the 3 principles which I have highlighted. I will start addressing you on the risk of absconding or not. My Lord you will note that there are two affidavits before you all coming from IO, the first affidavit My Lord appears on page 17 and 18 of the record it was deposited on 4 November 2017 by Detective Murira and it contains reasons of which formulated the opinion that the accused person was not a good candidate for bail.

And yesterday My Lord, the same detective deposited another affidavit 8 November containing reasons or justification why the applicant should not be admitted to bail. Right from the onset, I would like to point out that the two affidavits emanating from the same IO are materially different they contain facts which do not speak to each other.

And you will note My Lord that in the second affidavit paragraph 4 to 14 are not contained in form 242 or the initial affidavit accompanying form 242 request for remand form, what that means My Lord is that the State is bringing new allegations against the applicant through the IO’s affidavit, allegations which are not contained in the charge sheet and I submit with respect My Lord it is improper to bring such allegations which are not supported by the charges that the applicant is facing.

This is critical where the court has to determine the issue of risk of absconding and specifically where the court had authority in the case of Makamba vs. State SC30/04 has to consider the nature of the charges severity of the punching likely to be imposed for an accuser upon conviction and the apparent strength and weaknesses of the state case.

The 2 affidavits are the biggest blow to the State case, the strength of the State case cannot be considered in terms of aberrances which are made by the IO, the aberrances which are not supported by the charge sheet. More critically, My Lord, the state cannot rely upon two contradicting affidavits from the same person the same IO, My Lord in the same vein of interrogating the affidavits by the IO, I refer you to paragraph 4 of the second affidavit which is attached to the state’s response.

Paragraph 4 My Lord indicates that the applicant is guilty of inciting public violence through a facebook message that she sent on 12 July 2016, there so many issues arising from such allegations, My Lord, the first one being that these allegation points to offence of inciting public violence and the applicant before you has not been charged with that offence.

These aberrances do not support any of the two charges that the applicant is facing, that is the same thing My Lord running through to paragraph 7 of that affidavit, but more critically the affidavit speaks to events which happen in July 2016, yet the charge sheet is not dealing with that specific period, and might I refer you to page 15 of the record that is paragraph 3 where it is noted that “during the period extending to  6 February 2017 to the 2nd of November 2017 in Harare the accused who is in Zimbabwe under the cover of being employed as project manager at Magamba” then it goes on to mention what was allegedly done by the applicant, the period in question, in terms of the charge sheet is on the 6th of February 2017 to the 2nd of November 2017 but the affidavit  before you my Lord which has been used to justify the denial of bail speaks of the events which allegedly took place in July 2016.

On the basis of the affidavit My Lord I submit that the affidavit has nothing to do with charges that the applicant is facing, it is on that basis My Lord that I submit with respect that the State case is very weak. There can be no way that the accused person is likely to abscond if she is admitted to bail on the bases of allegations which are legally unsustainable and I might note, just in passing that you will observe again in paragraph 7, the State is making allegations that the applicant contravened provisions of the Electoral Act and again, My Lord, the applicant is not facing any charges under the Electoral Act.

It’s just one of the examples that I am citing to prove that the allegations contained are irrelevant to the charges the applicant is facing and cannot be relied upon as a basis to deny applicant bail.

My Lord, it is admitted indeed the second count carries a stiff penalty in the event the applicant is found guilty and really sounds serious and but that should not be the end of the inquiry, the court goes further to deal with the strength of the court case which I have just highlighted that the case is not strong.

My Lord, I want to deal specifically with provisions of Section 22.(2).a.1of the Criminal Code regarding the offence of subverting the constitutionally elected government. My Lord in terms of that particular section, it says any person whether inside or outside Zimbabwe who organises or setups or urges, encourages or suggests the organisation of setting up of any group or board, with view of that group or body to overtake to over throw a government by unconstitutional means, it is clear that what is being penalised in terms of that section is the setting up of a board or an attempt or advocate for the setting up of a board for the purpose of overthrowing a government through unconstitutional means.

What is missing from the State case is the allegations that the applicant whether in Zimbabwe or outside set up a board or advocated for the setting up of any board for the purpose of overthrowing a constitutional government. The State completely misses the essential element part of that, what you rather have on form 242 and indeed the affidavit by the IO are the allegations that the applicant is one of the many users, that is not what the law is penalizing, on that basis again My Lord, I submit that the State case is weak to the extent that it doesn’t capture the element of the offence.

And in an event My Lord the State made an allegation that the applicant is the user of a Tweeter handle @matigary and in particular the State went on to say that the machines which were being used by the applicant to commit an offence were identified and indeed I refer you record page 45, in which the State confiscated a laptop and cellphone which were allegedly being used by the applicant in operating the Tweeter handle @matigary. That was on the 3rd of November 2017 My Lord in the morning.

What is interesting to note My lord is what is found on the next page which is page 46 to page 47 of that same record. My Lord these two annexures contain tweets from @matigary and they record the time upon which he tweeted, the first one was at 20:07 pm on the 3rd of November and 17:56 pm what is important to note is that this is the same Tweeter handle which the applicant is accused of using in the commission of a crime containing the same details the IP address which the State alleges belong to the applicant.

While these tweets were happening My Lord the applicant was in police custody, the police had in their custody the applicant’s laptop and cellphone, the gadgets which were alleged to be the subject of offence. This leads to one inescapable conclusion My Lord, the applicant is right when she says I am not @matigary.

It serves to prove a point My Lord the applicant is right when she says I am not the one behind the tweets by @matigary and you will notice from the State’s response, the State does not dispute the aberrance of the allegations that the applicant is not @matigary, the State does not dispute that the tweets from @matigary continued even when the applicant was in police custody, even when the police had ceased those gadgets and those aberrances are made on paragraph 8 on page 10 of the record.

And My Lord I submit with respect that, which has not been disputed is taken to have been admitted. My Lord it’s important to mention that the State goes to town about the alleged behavior of trying to over throw a government through unconstitutional means by way of tweets but the State did not bother to attach those offending tweets where the applicant was inciting the public or advising anyone for that matter to overthrow a government through unconstitutional means.

The State has no basis whatsoever My Lord not to place those tweets before you especially when it has access and custody of the applicants gadgets upon which the alleged tweets emanate from, you have not been told My Lord why the State has failed to retrieve those tweets after having gone through them, you have not been told why those tweets have not been attached, what this essentially means My Lord  is that the State wants this honourable court to speculate on the nature of the tweets which should justify the offence of trying to subvert the government through unconstitutional means, this is a court of law, My Lord and it deals with evidence.

My Lord, I want to quickly move on to the aspect of the commission of further offence whilst on bail, the State has made bold assertions to substantiate the allegations that if the applicant is admitted to bail is likely to commit further offences, nothing more was said by the State to support this averment.

My Lord what has to be understood from the State’s argument is the if the accused is to released she will join with other co-accused and commit further offences, I have issues with that submission My Lord, first all the State has not stated where the other accused persons are, are they in Zimbabwe or outside Zimbabwe, the court has not been told, the identity of the co-accused the court has not been told, what the State has done so far in investigating those co-accused persons, the court has not been told.

The State has not shown how the continued detention of the applicant will stop the continued commission of this alleged crime especially My Lord in light of the fact that as we are appearing before you the @matigary character still continues to tweet, it has not stop notwithstanding that the applicant is in custody, the incarceration of the applicant has not aided the State case, so it cannot be the basis to deny the applicant her individual liberty.

My Lord, I will quickly deal with interference of investigations and State witnesses, the first point I wish to make, the State makes admission that they confiscated the applicant’s gadgets which were being used for the commission of crime, part of the leave that we are seeking is not the release of those gadgets My Lord, and the State is not making any allegations that the applicant will use any other gadgets apart from the ones they confiscated from her.

Secondly, the applicant cannot interfere with witnesses which are not known to her, the witnesses have not been disclosed to the court, their identity is not known on that basis that is bound on an unsubstantiated allegation which is not sufficient for purposes of deciding the onus placed upon the State in this particular aspect.

My Lord is it on that basis that I would argue that the State has not advanced compelling reasons as required by Section 50.(1).d of Constitution justifying the continued detention of the applicant and equally with regards to the second count Undermining the authority or insulting person of the President , the same argument I make in the first count apply with equal force, especially where it relates to the relationship between @matigary and the applicant, in any event, My Lord the offending message complained of by the State does not disclose.

I refer you My Lord to page 16 of the record paragraph 3, where it says the offending message is “we are being led by selfish and sick man” in paragraph 4 the message says it had an attachment of a photo of His Excellency the President of the Republic of Zimbabwe and a photo illustration suggesting that the President is surviving on the use of a catheter in passing out urine. My lord as you notice on the record that is before you the alleged photograph of the President has not be attached and is not part of the record, notwithstanding that the State is saying the photograph was found on the laptop which was confiscated from the accused person and again we have not been told the difficulties that the State had in retrieving and attaching that photograph, again the court is left my Lord to speculate whether or not that photograph really exists, whether or not it bears the face of the President.

How many people are there in that photograph, if they are 50 for argument’s sake on what basis the State is alleging the statement referred to the President, and in any event My Lord even if for argument sake we were to say the statement referred to the President it does not disclose the offence.

My Lord I will make my last submissions by referring to the last page of the State response on page 8, where the detective lists some factor which he says he relies upon in denying bail, you will note with respect My Lord that those factors are not the ones which are contemplated by the laws as compelling reasons for denying an accused person bail, and My Lord, I notice that there are fears of the IO contained on that page as well, and those fears will be catered for by proposition that is made on the bail conditions my Lord.

The first fear is that the accused person escapes to her home country extradition facilities will not be activated because the offences which the accused is facing not prescribed for the purposes of extradition. First of all My Lord, before we talk of any extradition facilities we have to address the possibility of applicant escaping and that can easily be dealt with.

Stringent bail conditions can cure that aspect and the applicant is willing as highlighted in paragraph 3 to deposit a sum of $500 and I should say that after liaising with my client she is even ready to abide by more stringent conditions than the ones that we have proposed.

You will notice on the bail application that the applicant earns $**** as a monthly salary, upon her further consideration she is even willing to deposit an amount of $1000 even though that will leave her with little to survive on. And My Lord on paragraph C we had proposed that she reports once every Monday between 6 and 8, we have since revised that My Lord that she can report twice a week and these proposals are meant to allay the state’s fears that the applicant may abscond. So if she is reporting twice a week it is very easy for the State to monitor whether the applicant is still within the jurisdiction of this country.

My Lord in making these submissions I am alive to the statement made by this honourable court in the case of Webster Nyaruviro vs. State, 8B262/17 where it was observed that bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of his release, and I submit that there are no sufficient grounds that the conditions we have suggested will not be observed by the applicant once admitted to bail.

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