By Tatenda Chitagu
The trial of MDC deputy chair and Zengeza West legislator, Job Sikhala, who is facing treason charges, kicked off yesterday at the Masvingo High Court, with his lawyers applying for exception to the charge, arguing that his utterances do not constitute a crime.
Sikhala is being accused of contravening section 22(2)(a)(iii) of the Criminal Law (Codification and Reform) Act after he allegedly uttered the words, “We will overthrow president Mnangagwa before 2023” at a campaign rally ahead of a by-election in Bikita last year.
He is out on $5 000 bail.
Sikhala’s lawyer Beatrice Mtetwa said the charges were vague, meaningless and did not establish the essential elements recognised by the law according to section 180 of the Criminal Procedure and Evidence Act.
Mtetwa argued at the start of the trial that according to the charge sheet, putting the accused on trial would be unfair as nobody knows the allegations raised and according to the section which Sikhala is being charged with, he did not call for the unconstitutional removal of the President and neither did he call for the unlawful removal of government.
“The statement that the State relies on makes no reference to setting up, organising or suggest setting up an organisation to overthrow government,” the defence counsel said.
Citing the removal of the late former President Robert Mugabe from power in November 2017 before his term expired, and its upholding by the courts under case 108/2/17, as well as its validation by the Constitutional Court under case number CCZ7/18, Mtetwa said there were many peaceful ways that a President could be removed from power in a non-violent manner, among them impeachment, which are allowed by the Constitution.
“The accused, being a legislator who sits in Parliament, has the vantage point to impeachment, just like what (former MDC MP and now ambassador) James Maridadi did in 2017. It is the job of politicians to advocate for the lawful removal of opponents,” she told the court.
Mtetwa also said Sikhala’s statements were taken out of context as fighting and war does not only constitute being physical or mean unconstitutional means.
“You can remove someone from power against their wishes without the use of violence. We also talk of the war against poverty and fight against Aids, but we don’t use machetes to fight poverty. It is not real war against Aids,” she said.
The human rights lawyer said Mnangagwa alone was not government and the government — made up of three arms: the Executive, the Legislature and the Judiciary — is not Mnangagwa.
“Even if Mnangagwa was government, which is not the case, there is nothing unconstitutional in terms of section 67 of the Constitution. Impeachment is a war, as happened recently in the United States, but there is nothing physical about it. Our government has never been of individuals,” she said.
Prosecutor Tawanda Zvekare opposed the application for exception, saying Sikhala used the word overthrow and had, therefore, called for a coup against Mnangagwa before elections.
Justice Garainesu Mawadze reserved judgment on the application and will make a ruling on February 14.