JAPAJAPA v STATE (41 of 2024) [2024] ZWSC 41 (2 February 2024)

Judgment No. SC 41/24 Civil Appeal No. SC 600/231 REPORTABLE

(41) PADDINGTON JAPAJAPA v THE STATE SUPREME COURT OF ZIMBABWE MAVANGIRA JA, MAKONI JA & CHIWESHE JA HARARE: 2 FEBRUARY 2024 L. Madhuku with P. Kufakwaro, for the appellant R. Chikosha, for the respondent MAKONI JA:

1. This is an appeal against part of the judgment of the High Court of Zimbabwe (“the court a quo”), sitting as an appellate court at Harare, dated 9 October 2023. The part appealed against is the dismissal, by the court a quo,of the appellant’s appeal against both conviction and sentence. After hearing submissions from counsel, we allowed the appeal and made the following order:

1. The appeal be and is hereby allowed.

2. The judgment of the court a quo is set aside and substituted with the following: “(i) The appeal against conviction be and is hereby allowed. (ii) The judgment of the trial court be and is hereby set aside and substituted with the following: ‘The accused be and is hereby acquitted’.”

2. We indicated that reasons would be given in due course. These are they: Judgment No. SC 41/24 Civil Appeal No. SC 600/232

Facts

3. The appellant was tried, convicted and sentenced in the Provincial Magistrates Court at Harare for the crime of Incitement to Commit Public Violence as defined in s 187(1) as read with s 36(1) of the Criminal Law (Codification and Reform) Act [ Chapter 9:23] (“the Criminal Law Code”).

4. The State’s allegations were as follows. On 31 July 2018, the appellant was at the Harare International Conference Centre (“HICC”) as an accredited local election observer representing the Movement for Democratic Change Alliance (“the MDC Alliance”) political party awaiting the announcement of the results of the Zimbabwe harmonised elections by the National Elections Command Centre. Following the announcement of the results, the appellant was alleged to have protested the results in a tirade during which he was alleged to have uttered the following words at a press conference: “If people come to rallies it means they appreciate the candidate. You cannot follow a candidate whom you cannot vote for. So we are saying all those people who were coming for example in Mkoba the stadium was full to capacity with more than 45 000 people. In Mutare, I attended. In Masvingo, I attended. Chamisa was pulling more than 30 to 40 000 and now we are seeing a different scenario altogether. So we are saying, as people of Zimbabwe this is a watershed election. It’s a do or die we are not going to accept this rubbish. ZEC must do the right thing by announcing the proper results. Failure to do this as a leader of Civic Organization, I am going to call for chaos in this country. We are not concerned about the consequences. We want the right thing to be done. And we are going to have an audit of this election and if there are any irregularities I am sorry as Civic Society Organizations we are not going to accept this rubbish...”

5. On the following day, 1 August 2018, members of the MDC Alliance political party, of which the appellant is a member, protested the results announced by the National Command Centre which protest resulted in countrywide civil unrest which turned violent.

6. The State alleged that the appellant intended, by such communication, to incite public violence or knew that there was a real risk that his target audience would, by such Judgment No. SC 41/24 Civil Appeal No. SC 600/233 communication, be persuaded or induced to commit public violence. The State case was based on a video clip uploaded onto an internet online platform known as YouTube. The video evidence was downloaded and preserved on compact disc by a State witness who testified at the appellant’s trial. The video depicted the appellant at the HICC wearing a full election observer’s regalia which included a bib, addressing listeners who are out of the picture, and uttering the above stated words. PROCEEDINGS BEFORE THE TRIAL COURT

7. The appellant denied the charge. He however admitted that he was at the HICC on 31 July 2018 as an accredited agent of the MDC Alliance. He also admitted that it was him who appeared in the video and that it correctly depicted what he was wearing on the day in question. He however denied making the utterances attributed to him in the charge. He said the video was created by the State through a process called ‘photo shopping’. He explained that by ‘photo shopping’ he meant that his correct image was used, accompanied by some voice over, to make it appear as if he had addressed a press conference and made the inflammatory statements.

8. The State called two witnesses. The first to give evidence was one Jealousy Nyabasa, an Assistant Commissioner in the Zimbabwe Republic Police (“the ZRP”) at the time of giving evidence. It was his evidence that in July 2018 he was deployed to police the Harare area during the harmonised elections held during that period. On 31 July 2018, in the evening, he was watching a show called ‘Just Imagine” on YouTube, when he stumbled on a video of the appellant speaking in, what appeared to be, an interview during which he uttered the inflammatory words forming the basis of the charge. Judgment No. SC 41/24 Civil Appeal No. SC 600/234

9. He further testified that the video later went viral on social media that evening and the following day members of the MDC Alliance party violently protested the results of the elections. He concluded that the demonstrators were members of the MDC Alliance because they were wearing MDC Alliance regalia. He instructed the Law-and-Order division of the ZRP to investigate the issue of the video which he had seen on YouTube the day before the violent protests broke up. He believed that the disturbances were incited by the appellant’s utterances.

10. He denied any suggestions that it was a mere coincidence that the turmoil took place after the video had been posted on YouTube and that the video was produced by the State to falsely accuse the appellant of inciting the violence. He asserted that the video was genuine and not ‘photo shopped’, as alleged by the appellant, because he (the witness) knew the appellant’s voice and demeanour on television.

11. The second witness called by the State was one Simbai Nyamayauta who testified as a cyber expert. He holds a Bachelor of Science Degree in Management of Systems and a Certificate in ‘Reducing Cybercrime through Knowledge and Capacity Building’. He gave evidence to the effect that he had 10 years’ experience in the Zimbabwe Republic Police and was, at the time of giving evidence, working at the Criminal Investigations Department’s Headquarters as a Systems Administrator.

12. It was his evidence that on 3 August 2018, he downloaded, from YouTube, a video depicting the appellant addressing what appeared to be a press conference and preserved it on a compact disc for future reference as evidence. He noted that it had been uploaded on 31 July 2018. Judgment No. SC 41/24 Civil Appeal No. SC 600/235

13. During cross examination, the defence played a video depicting the late President of Zimbabwe which they said had been manipulated to demonstrate that videos could be created or manipulated. The second State witness could not say whether the video of the late President had been edited or photo shopped. He confirmed that photo shopping exists and described it as a process whereby a photograph or a video is edited to show or add characters, pictures or features which were not in the original video or picture. The appellant then urged the court to reject the video evidence because it was not credible in the absence of the audience being addressed in the video and evidence regarding who recorded and uploaded it onto the internet.

14. At the end of the trial the appellant was convicted and sentenced to imprisonment for a period of three (3) years of which one (1) year was suspended for (5) five years on the usual conditions of good behaviour. In its reasons for judgment, the trial court made the following findings. The second state witness had conceded that it was possible for a video recording to be tempered with and had also conceded that he could not dispute that the video was susceptible to alteration before being uploaded to YouTube. Having observed as above, the court still found that the video produced in court was authentic and credible and therefore safe to rely on.

15. The court found that it had taken into account all the attendant circumstances of the case. The video had been uploaded on 31 July 2018. The appellant had not disputed that he was the person appearing in the video. He was indeed at the HICC as the MDC Alliance election observer on the day. The court was satisfied beyond reasonable doubt that the appellant’s utterances were inflammatory. The court accepted that there was no direct evidence linking the utterances in the video with the civil protests that took place on 1 August, 2018. It however concluded that there was a real likelihood that the publication Judgment No. SC 41/24 Civil Appeal No. SC 600/236 of the video through social media had instigated the political violence which erupted on 1 August 2018. PROCEEDINGS IN THE COURT A QUO

16. The appellant, aggrieved by the outcome, appealed to the High Court against both conviction and sentence on 25 July 2019. Against conviction, the appellant argued that the trial court misdirected itself by placing reliance on a contested video as evidence, to convict the appellant, without giving reasons for its decision to rely on the video as the appellant had contested its authenticity.

17. The appellant’s counsel also argued that the possibility that the video may have been edited before uploading onto YouTube was not eliminated by any evidence at the trial and that too made the conviction unsafe. The appellant’s counsel further argued that, to the contrary, the second witness purported to give evidence as an expert whereas his testimony was based on insufficient facts or data and thus consisted of mere guesswork and conjecture.

18. The appellant’s counsel further argued that the court a quo erred in convicting the appellant in the absence of evidence aliunde confirming that the appellant held a press conference. He submitted that in the event that appellant did not succeed against conviction, there was a sound legal basis for the court to interfere with the sentence.

19. Firstly, he submitted that the effective term of imprisonment was not called for because the sentence of imprisonment of 24 months imposed by the trial court was within the threshold of the non-custodial option of community service. Secondly, the trial court misdirected itself by placing undue weight on the fact that the appellant’s conduct contravened the Electoral Act [Chapter 2:13], a consideration which was irrelevant to the Judgment No. SC 41/24 Civil Appeal No. SC 600/237 charge which the appellant had been convicted of. Thirdly, the trial court misdirected itself when it failed to take into account that the appellant did not announce results of the election.

20. The appeal was opposed by the State which argued that the evidence led at the trial was overwhelming and proved that the appellant uttered the words forming the basis of the charge. The State also argued that the appellant had not disputed, at his trial, that he was the person shown in the video on YouTube wearing an election bib.

21. State counsel conceded that the State did not adduce direct evidence to prove that the protesters were instigated to commit violence by the inflammatory utterances. He however argued that the connection could safely be inferred and that in terms of our law, it was not necessary for the State to establish a direct connection between the inflammatory words and the violence which occurred the following day. He based the submission on s 187(2) of the Criminal Law Code which says it shall be immaterial to a charge of incitement that the person who was incited was unresponsive to the incitement and had no intention of acting on the incitement or that the person who was incited did not know that what he or she was being incited to do or omit to do constituted a crime.

22. With regards to the sentence, the State submitted that the sentence was appropriate and there was no justification for the High Court, sitting as a court of appeal, to interfere with the sentencing discretion of the trial court.

23. In its judgment, the court a quo held that the person who uploaded the video on YouTube was not known, however, the absence of such evidence was not the end of the enquiry. It held that it was not the only factor that it could take into account but it was also entitled to take into account other relevant factors. The court further held that that the video was Judgment No. SC 41/24 Civil Appeal No. SC 600/238 showing on YouTube and thus circulating on the internet was an undeniable fact. The source of the video produced in court was therefore known and easily accessible by the appellant.

24. The court went on to hold that the second witness was able to download it without changing its contents and preserved it professionally. He did not interfere with its contents. The court therefore held that the attack on the second witness’s evidence was therefore baseless as his role was simply to download and preserve the evidence for production in court. The court a quo agreed with the trial court’s finding that the video evidence was confirmed by other State evidence either admitted or not controverted by the appellant at his trial.

25. It was also the court’s finding that the appellant was not consistent in his defence. The appellant did not contest the existence of the video but objected to the video on the basis that it was created by the State. The second contradiction was that the appellant initially denied the charge on the basis that he had not made the utterances attributed to him in the charge. He however confessed in mitigation that he uttered the words forming the basis of the charge “... as a result of temptation and emotional stress”. He said his moral blameworthiness was reduced by the fact that ‘he succumbed to temptation and the circumstances surrounding him’

26. The court was not persuaded by the appellant’s argument that the mitigation did not necessarily constitute a confession to the crime and that he was merely abiding by the judgment of the court which had convicted him. The court held that the appellant was therefore volunteering information which was peculiarly known to him which he wanted to be considered as truth of what transpired. He was, thus, taking the court into his confidence as a sign of remorse and repentance. Judgment No. SC 41/24 Civil Appeal No. SC 600/239

27. The court thus held that his insistence on appeal that the video was a creation of the State and that he did not utter the words which formed the basis of the appeal was, therefore, not bona fide. The court also held that it was not necessary for the State to adduce direct evidence connecting the appellant’s utterances with the violent protests which occurred. Accordingly, the court held that the appeal against conviction lacked merit.

28. With regards to the appeal against the sentence, the court held that, barring a misdirection or an irregularity, the court would not interfere with the sentencing discretion of the trial court unless the severity of the sentence amounts to a miscarriage of justice. The court found no misdirection in the manner in which the trial court approached the issue of sentence and accordingly held that the appeal against sentence lacked merit.

29. Dissatisfied by the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal.