HARARE – Recent mandatory jail sentences of rioters which range from one year to 5 years are stiffer compared to those imposed in Smith’s regime, lawyers and analysts contend.
The harsh sentences being passed by the courts on suspected rioters of the 14 January three-day stay away strike called by labour unions after President Emmerson Mnangagwa raised fuel prices by 150 percent which led to street violence and looting.
There is fear of possible links between an alleged militarised prosecution and the sentences as most of the more than 1000 people were unlawfully arrested mainly from their homes by security agents some of whom have no powers to arrest.
Recently, hundreds of Zimbabwean lawyers marched in the capital to demand justice for people detained in jail and others facing fast-track trials.
Rights lawyer Jeremiah Bamu who has handled a series of the public violence cases since former President Mugabe era said the sentences being induced were even stiffer compared to those imposed in Smith’s regime.
“In a 1962 public violence case, R vs Mashotonga held by the Southern Rhodesian Triangle magistrates court the compound employees had damaged property during a riot and the Federal Supreme Court sentenced them to six months imprisonment with hard labour.
“Another one, R vs Libele of 1957 two accused persons who were first offenders were convicted of public violence. They were sentenced to three months imprisonment with hard labour and to receive six cuts with a cane
“…now current sentencing trends are out of odds with punishments in similar cases. What is disturbing is that a more democratic and independent Zimbabwe is giving stiffer sentences, more harsh than those imposed in colonial Rhodesia,” Bamu said.
Political analyst Maxwell Saungweme said one would be excused to draw possible links between an alleged militarised prosecution and the sentences. “We once again see here the State politicising the judiciary for political ends. The sentences are ridiculous, heavy handed, excessive and political.
“We have not heard about the arrest and sentencing of soldiers who killed civilians on August 1 or during the time the protests happened. This tells you it’s all politics and no justice, no legality,” said Saungweme.
Seasoned lawyer Alec Muchadehama said due process was not followed in the public violence cases and the manner of arrests in itself is objectionable.
Muchadehama said in the court it is now emerging that these protesters were unlawfully arrested mainly from their homes by security agents comprising soldiers, police and the Central Intelligence Organisation some of whom have no powers to arrest.
“Arrests were dragnet in violation of constitutional provisions that provide that a person must be promptly advised of their arrest. When they were arraigned before the courts the Prosecution immediately requested to have them tried and courts acceded to that prejudicing them the opportunity to prepare.
“They used a blanket approach to the trials and convictions were sustained on unreasonable grounds. This has resultantly clogged the courts because convictions are now being challenged through appeals,” said Muchadehama.
Political analyst MacDonald Lewanika said the indiscriminate nature of the sentences and fast track nature in which some of cases were conducted shows that rather than justice, the state is more intent to send a lesson.
“In doing so the trial processes have been mostly irregular and borderline illegal with some suggestions of collusion between the courts, the police and prosecution services, as well as state witnesses coaching. As a result, most of this punishment does not fit the crimes, with some of the sentences being gross miscarriages of justice,” said Lewanika.
Human rights lawyer Marufu Mandevere said we have seen a serious shift in the manner that prosecutions have been done with respect to the public violence cases. “The cases were fast tracked with shoddy investigations but still matters were allowed to go into court.”
Social analyst Rejoice Ngwenya said he is a liberal property rights advocate who condemns all forms of property violations. “But our judiciary is compromised. At least 4500 white citizens had their properties plundered but not a single criminal was arrested. This is not justice but political revenge. A custodial sentence is malicious and political. They should be fined and released immediately.”
Lawyer and politician Obert Gutu said a judicial officer is normally guided by the gravity of the offence as well as the accused’s mitigating circumstances when handing down an appropriate sentence.
“In certain statutory offences, the law stipulates the minimum sentence that has to be handed down on a convicted offender, so in those type of cases, the judicial officer’s hands are tied unless there are special circumstances that warrant the imposition of a lesser sentence.
“I haven’t carried out a comprehensive study to ascertain the severity of the sentences that are being imposed on convicted protesters countrywide. However, in the event that the convicted protesters’ lawyers feel that the sentences being imposed are disproportionate and that they induce a sense of shock and outrage, the option of an appeal against both conviction and sentence or against sentence only, is always available,” said Gutu.
He added that as an experienced lawyer himself “I am unable to simply condemn the severity of the sentences that are being imposed against convicted protesters without satisfying myself, through a perusal of the relevant court records, that there has been a gross miscarriage of justice.”
Political analyst Vivid Gwede said these sentences are looking like diktats rather that products of a disinterested and impartial justice system.
“One begins to think that the ones being convicted are being used as examples, which is not what the law is designed for or should do.
“What has raised eyebrows is the harshness of the sentences, ranging up to five years, which probably tie in with utterances from the political leadership. There is a perception that we are witnessing political trials,” said Gwede.
Social analyst Tawanda Chimhini said we have a recent constitutional judgement that orders the disengagement of the services of security officers from the National Prosecution Authority.
“This decision by the court is quite revealing in the wake of alleged militarisation of key state institutions.
“Now in relation to the unusually harsh sentences being given to persons found guilty of crimes linked to the January protests, one would be excused to draw possible links between an alleged militarised prosecution and the sentences. One could also draw attention to complaints by the Zimbabwe Law Society over the fast tracking of cases associated with the January protests. All these developments are not isolated and raise a concern around access and delivery of justice,” said Chimhini.