HIGH COURT judge, David Foroma has reserved his judgement on bail appeal by three MDC Alliance activists, Joanna Mamombe, Cecilia Chimbiri and Netsai Marova.
The three was being accused of publishing falsehood prejudicial to the state through faking their recent “abduction”.
This followed claims they were seized by state security agents who subjected them to acts of torture and sexual abuse as punishment for staging an anti-government protest their abductors equated to an attempt to overthrow government.
Mamombe and colleagues were last week denied bail by Harare magistrate Bianca Makwande who ruled they were likely to abscond trial if granted bail.
The magistrate also said the three were likely to continue committing offences if granted bail.
Through their lawyers, Alec Muchadehama and Jeremiah Bamu, Mamombe and accomplices argued that the magistrate erred in denying them bail.
“Having properly analysed the case, you will realise that the magistrate denied the applicants bail basing on grounds that they were likely to abscond and to reoffend.
“The state was supposed to give cogent reasons but there was nothing placed before the magistrate but she just believed the prosecutor on his mere say so. What was required was to put reasons based on facts,” argued Muchadehama.
The state alleged the trio was caught on CCTV shopping at Belgravia Shopping Centre in Harare during the period of their alleged abduction.
Muchadehama said they challenge the existence of the video because it was never produced in court.
“The state were also unable to produce despite our demand that it should be produced. The existence was put in issue.
“In the event that it will be produced there will be serious challenges,” said the lawyer.
“After they were found at Muchapondwa Business Centre, they were taken from the hands of the police to the hospital in a state undeniable for someone to conclude they had been physically and sexually abused,” he said.
The Judge demanded evidence that the three were physically and sexually abused saying it remains a complaint by them and not established if medical reports is not given.
“I’m not saying the police are correct . I’m not going to determine who is telling the truth but I’m going to determine whether your clients can be granted bail or not ,”said the judge.
“I’m not going to substitute my discretion basing on the findings of the court aquo.
“You can’t just say the court can’t rely on the state’s submissions but rely on ours.”
The issue of publicity also came into play with the judge saying consequences of the alleged false publicity should be taken into consideration.
Muchadehama argued that the three cannot be punished over the hype their case was given by social media.
“The appellents did not publish anything. The publicity happened before they were found. For the magistrate to punish them over that will be a misdirection,” said Muchadehama.
The state alleged Mamombe,Chimbiru and Marova staged a demonstration over food shortages in Warren Park thereby breaking Covid-19 regulations.
After the demonstration, it is alleged that they went on to fake an abduction causing tension in the country.
Muchadehama submitted that his clients pays a substantial amount of bail and be put on stringent reporting conditions.
“Even if they are ordered to report daily they are ready to abide,” he said.
The lawyer also said they are willing to surrender surety in form of title deeds.
The state argued that the magistrate was right in denying the three bail.
“The evidence placed before the court was to place it on record that there was overwhelming evidence against the applicants. The IO said they were seen walking freely on the day in question.
“This evidence was not refuted by the defence. It is clear from the evidence of the defence that the issue of video was not seriously disputes even it’s existence, ” said Alami appearing for the state.
Meanwhile, according to Muchadehama, the three are still undergoing counselling because of the trauma they encountered.
They are also on medication after they were physically abused.Source – newzimbabwe