Evan Mawarire v The State

On 13 January 2019, the applicant (a pastor) together with Peter Mutasa (President of ZCTU) published a video on social media platforms calling for a national stay-away/shutdown for three days (14-16 January) to protest economic challenges, demanding workers be paid in US dollars and removal of bond notes. The video went viral and the State alleged it led to boycotts, civil disobedience, public violence, looting, and the death of a police officer. The applicant was arrested at his home on 16 January 2019 and charged with subverting a constitutional government under s 22(2)(a)(iii) of the Criminal Law Codification and Reform Act, alternatively with inciting public violence. The video explicitly called for people to stay home and not engage in violence. The applicant had previously been acquitted in 2017 on similar charges for comparable conduct. He applied for bail pending trial before the High Court as the magistrate court lacked jurisdiction for Part 1 Third Schedule offences without Prosecutor General consent.

• Whether compelling reasons existed to justify the applicant's continued detention and denial of bail
• Whether the applicant discharged the onus under s 115C(2)(ii)(A) of the Criminal Procedure and Evidence Act to show it was in the interests of justice to grant bail for a Part 1 Third Schedule offence
• How to balance the constitutional right to release on bail under s 50(1)(d) with the seriousness of charges involving alleged subversion of constitutional government
• Whether the applicant posed a flight risk or would interfere with witnesses
• Whether granting bail would undermine the proper functioning of the criminal justice system given the violence that occurred during the stay-away period

Bail granted on stringent conditions: (1) deposit of $2,000 with Clerk of Court; (2) reporting three times weekly at Avondale Police Station; (3) residence at fixed address; (4) surrender of passport; (5) no interference with witnesses; (6) surrender of immovable property title deed valued at $40,000 USD as surety.

The binding legal principles established are: (1) Section 115C(2)(ii)(A) of the Criminal Procedure and Evidence Act, which places the onus on applicants charged with Part 1 Third Schedule offences to show it is in the interests of justice to grant bail, does not derogate from the constitutional imperative in s 50(1)(d) that accused persons must be released unless compelling reasons justify detention; (2) The State retains the burden to establish compelling reasons for continued detention even in Third Schedule cases; (3) An applicant can discharge the onus by showing that despite any compelling reasons advanced by the State, the interests of justice favor release on bail; (4) The seriousness of an offence, standing alone, does not constitute compelling reasons to deny bail and must be considered with other factors; (5) Where an applicant has a strong arguable defense (including based on previous acquittals for similar conduct and constitutional protections), is of fixed abode, not a flight risk, and unlikely to interfere with witnesses or investigations, bail should be granted even for serious offences; (6) Bail conditions must balance societal interests with individual liberty and should not arbitrarily deprive liberty.

The court made several non-binding observations: (1) That the argument about porous borders making passport surrender ineffective was "amusing" as it is not the applicant's fault borders are porous, and surrender makes lawful departure difficult even if not preventing illegal border crossing; (2) That "only a fool would be advised to commit a similar offence whilst on remand before he has been cleared of the pending case"; (3) That society does not crave for suspects with arguable defenses to be committed to custody pending trial; (4) Commentary on the dark episode of lawlessness, property destruction and loss of life that occurred, emphasizing that no civilized society should engage in such conduct and it is not protected by the Constitution; (5) That the video clip should be considered as a whole and emphasized staying at home without violence, contrary to what actually occurred on the streets; (6) That withholding labor is not an offence per se except for security services members, subject to restrictions for essential services.

This case is significant in Zimbabwean jurisprudence for clarifying the interaction between statutory bail provisions for serious Third Schedule offences and constitutional rights under s 50(1)(d). It establishes that even where the onus is on an applicant to show granting bail is in the interests of justice, the State must still prove compelling reasons for detention, and the applicant can rebut these. The judgment emphasizes that seriousness of charges alone does not justify denial of bail, and that courts must balance societal interests against individual liberty. It also addresses the extent to which previous acquittals for similar conduct and constitutional defenses based on freedom of expression can support bail applications, even in politically sensitive cases involving alleged subversion of government where public violence occurred following the accused's statements.