Civil Society Statement on the judicial treatment of Hon. Job Sikhala and Other Human Rights Defenders & democracy activists in Zimbabwe.

We, the undersigned Civil Society Organisations (CSOs) herein register our deep concerns against a growing trend of judicial persecution and the abuse of the legal system (lawfare) by Zimbabwean authorities to close the civic space and target human rights defenders (HRDs) and pro-democracy activists. This statement is directed to:

• The President of the Republic of Zimbabwe (President Emmerson Dambudzo Mnangagwa), 
• The Chief Justice of Zimbabwe (Justice Luke Malaba), 
• The Minister of Justice and Parliamentary Affairs (Minister Ziyambi Ziyambi),
• The Acting Prosecutor General (Mr Nelson Mutsonziwa) 

These concerns are informed by the case of Honourable. Job Sikhala, the Zengeza West Legislator, Human Rights Lawyer and Senior Member of Zimbabwe’s Citizens Coalition for Change (CCC) has been remanded at Chikurubi Maximum Prison from 14 June 2023 to date charged with two false allegations of obstruction of the course of justice and public violence. Other cases of judicial persecution through prosecution include the cases of Jacob Ngarivhume, Hopewell Chin’ono, and Tsitsi Dangarembwa.

Please note that as a civil society, we recognize Hon.  Sikhala as a human rights defender, human rights lawyer, and pro-democracy activist. We are concerned that he was arrested as punishment for representing the family of the late Moreblessing Ali who was seeking justice after the brutal murder of Moreblessing by a suspect/s believed to be linked to the ruling Zimbabwe African National Union–Patriotic Front (ZANU PF). Further, note that as a registered legal practitioner Sikhala had every right to represent his client (family of the slain Moreblessing Ali) and also that the family of the murdered Moreblessing Ali had the right to choose a lawyer of their choice.

The following forms part of our concerns:

• The dismissal by both the Magistrate Court and High Court of more than 10 bail applications in circumstances where the law and the facts require that bail be granted, suggests that the procedural safeguards meant to secure the right to a fair trial through the judicial process have failed and continue to fail in Hon. Sikhala’s case.  We refer to  Section 117(1) of the Criminal Procedure and Evidence Act  [Chapter 9:07]  which states that “[A] person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interests of justice that he or she should be detained in custody”. This legal right is not being given effect in Hon. Sikhala’s case. The approach to bail as it is worded in the Criminal Procedure and Evidence Amendment Act [Chapter 9:07] is not being applied by the courts and we strongly opine that there is no legal basis to justify why Hon. Sikhala has been denied bail on numerous occasions and continues to be held in prison for more than 10 months. 

• In addition to the above, it is our understanding that bail is a right which is fundamental to protecting the right to a fair trial. It becomes disturbing when this right is infringed with impunity. And more disturbing when the courts are part of the violators of human rights and where it also appears to be a selective application of the law considering that other persons accused of crimes that are even more serious as compared to allegations against Hon. Sikhala were granted bail hassle-free. This is regarding the cases of the Gokwe Nembudziya legislator, Justice Wadyajena; former Health Minister, Obadiah Moyo; former Local Government Minister, Ignatius Chombo; and Henrietta Rushwaya linked to ZANU PF party who were granted bail without facing challenges as compared to  Hon. Sikhala’s case.

• Furthermore, it turns out to be legally unsound that Hon. Sikhala’s fellow Parliamentarian, Godfrey Sithole and the 14 residents of Nyatsime who were arrested together with him under the same charges were granted bail whilst Hon. Sikhala’s more than 10 bail applications were dismissed. The fact that Hon. Sikhala has been consistently denied bail raises suspicion that the law is being weaponized for the judicial persecution of the human rights lawyer and disliked political opponent.  
•  Hon. Sikhala has been held for over 10 months even though he should be presumed to be innocent until proven guilty by an impartial and competent court of law. To add to Hon. Sikhalas’s plight, prisons in Zimbabwe, especially Chikurubi Maximum Prison where Hon. Sikhala is detained, is generally overcrowded, dilapidated, and have poor living and sanitary conditions making prisoners susceptible to infectious diseases.  This is of particular concern as Hon. Sikhala has previously reported himself unwell.

In keeping with the above, the case of Hon. Sikhala completely undermines and contradicts any claim of the existence of the rule of law in Zimbabwe. The continued detention of Hon. Sikhala raises serious doubts about the independence and fairness of the judiciary in Zimbabwe. This argument becomes even more persuasive when considering the contrasting treatment of whistleblowers, journalists exposing corruption, government critics, activists, and individuals with dissenting opinions like Hon. Sikhala, in comparison to those connected to the ruling ZANU PF party, such as Justice Wadyajena, the legislator for Gokwe Nembudziya; Obadiah Moyo, the former Health Minister; Ignatius Chombo, the former Local Government Minister; and Henrietta Rushwaya. This reinforces strong views about judicial capture and the erosion of democratic institutions. 

It is our conviction that Hon. Sikhala’s continued arbitrary detention amounts to an indirect punishment for his family and colleagues who depend on him for socioeconomic and political support. As a breadwinner for his family, his continued unfair incarceration means that his family will continue to suffer with no effective remedy, compensation or reparations, all of which are worsened by not knowing if, or when, the ordeal will end. As a political leader mandated with the function of representing his constituents and as a likely contestant in the impending 2023 elections, Hon. Sikhala’s continued detention in an election year means that he will potentially suffer irreparable harm should he not be released as this would effectively block him from participating in the elections in clear violation of his rights as guaranteed by the Constitution of Zimbabwe, 2013. 

The conduct of the Zimbabwean law enforcement, judiciary and prosecution is not only in violation of its national laws and policy frameworks but also violates international human rights treaties which Zimbabwe signed and ratified such as the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.

In keeping with the above, we strongly urge the Zimbabwean authorities to respect human rights and fundamental freedoms of human rights defenders, and pro-democracy activists. More specifically, we make the following recommendations:

General Recommendations

• Hon. Sikhala is entitled to and should be given equal protection of the law and the right to a fair trial by an independent and impartial tribunal should the Government of Zimbabwe (GoZ) persist with the case.
• Hon. Sikhala should have equal access to effective judicial remedies as provided for under national and international law without any discrimination on political grounds. 
• Hon. Sikhala should be entitled to represent his clients without being associated with their causes and without being persecuted for legitimately performing his duties as a lawyer.
• Any persons in the Executive and the Judiciary or who are part of ZANU PF or any other organization that may be unduly influencing the courts and violating the principle of separation of powers in Hon. Sikhala’s case should be identified, apprehended, prosecuted, and convicted for their inexcusable actions.
• Hon. Sikhala should have equal access to effective judicial remedies as provided for under national and international law without any discrimination on political grounds. 

Recommendations to the Zimbabwean Judiciary

• The Zimbabwean judiciary must protect itself from the image of a compromised judiciary that lacks independence and impartiality in matters involving HRDs, pro-democracy activists and legitimate political opponents by rigorously enforcing and protecting the Bill of Rights in cases before it and building jurisprudence that strengthens the implementation of the 2013 Zimbabwe Constitution and accords with the Principles And Guidelines on The Right to a Fair Trial And Legal Assistance in Africa.

• The management of the judiciary, including the Chief Justice should implement a programme of continuous judicial education to build a solid understanding on the part of judicial officers as to their role and duties which must be discharged with the highest levels of integrity, independence and impartiality
• A Judicial Committee should be set up to inquire into the circumstances that led to judicial officers in Hon. Sikhala’s case being unable to properly consider the question of bail and its findings must be made public to prevent the manipulation of the judiciary and its processes in similar cases in the future. 

Recommendations to the Executive and Politicians

• The Executive arm of government, including the President, should support the establishment of an independent and impartial judiciary, protection of fundamental human rights and freedoms and the rule of law as enshrined in Section 90 and other sections of the Constitution of Zimbabwe and international instruments binding on Zimbabwe and in particular should refrain from any conduct or action that interferes with judicial independence as this undermines the rule of law and erodes public trust and confidence in the judiciary

• The Executive should also lead in the process of initiating the promulgation of legislation and regulations that result in the full implementation of the Bill of Rights in the 2013 Constitution of Zimbabwe

We hereby sign: