CHIEF Justice Godfrey Chidyausiku yesterday postponed pronouncement of judgment on preliminary points raised by a Bulawayo woman seeking permanent stay of prosecution over charges of insulting and undermining President Robert Mugabe by sending her friend a caricature of the nude President using WhatsApp.
SENIOR COURT REPORTER
Shantel Rusike (22) is alleged to have sent the offensive image to her unidentified friend on December 24 2013 using her WhatsApp number.
Through her lawyer Advocate Lewis Uriri, Rusike argued that her conduct did not constitute a criminal offence since a WhatsApp platform could not be defined as a public platform. She further argued that the mere fact that somebody would attach the President’s head on any other photograph would not therefore mean that the picture reflected Mugabe’s true image.
Justice Chidyausiku asked the Prosecutor-General’s representative Innocent Muchini to explain the difference between an individual and a public platform.
Justice Chidyausiku said Rusike was being charged for sending the pictures to the public whereas she had just sent the image to a friend.
“If you send a message to your wife or to a friend, does it mean that you would have sent the message to the public?” Justice Chidyausiku queried.
“Isn’t it that WhatsApp is a private platform where individuals communicate, but even if they don’t agree and have differences does that make it a public platform? The point is to find out what constitutes communication in a public place because WhatsApp is communication between individuals.”
But Muchini told the court that in Rusike’s case, the recipient of the image was a member of the public, who had not solicited for any messages from her friend, as such the State was of the view that the message was sent to the public.
Deputy Chief Justice Luke Malaba left the gallery in stitches when he said it was not possible for any person to get a picture of Mugabe in the nude.
“It can’t be true, where would any person get the picture of the President in the nude? The charge does not make sense, you charged the girl with something that does not make sense,” Justice Malaba charged.
Allegations against Rusike are that on December 24 2013 at 11:49pm, she sent a picture depicting a naked Mugabe on WhatsApp.
The picture had a caption that read: Robert Mugabe turning 87 years on February 21, 2011, happy birthday Matibili operation.