The State v Job Sikhala

The accused, Job Sikhala, a 47-year-old legal practitioner and National Vice Chairperson of the MDC Alliance and Member of Parliament for Zengeza West Constituency, was charged with subverting constitutional government under section 22(2)(a)(i) of the Criminal Law (Codification and Reform) Act. The charge arose from utterances he allegedly made at an MDC Alliance political rally held at Mandadzaka Primary School grounds on 6 July 2019 in Bikita, Masvingo. The State alleged that in his speech, Sikhala advocated for the overthrow of President Emmerson Mnangagwa's government before the 2023 elections through unconstitutional means. The specific quoted utterances included references to "war and fight" and statements that "we are going to overthrow him before 2023." At the commencement of trial, after pleading not guilty, the accused took an exception in terms of section 171(2) of the Criminal Procedure and Evidence Act, arguing that the charge disclosed no offence.

• Whether the alleged utterances by the accused, as quoted in the indictment, disclosed an offence under section 22(2)(a)(i) of the Criminal Law (Codification and Reform) Act
• Whether the quoted utterances referred to overthrowing government by unconstitutional means as required by the statutory provision
• The proper interpretation of 'unconstitutional means' in the context of section 22(2)(a)(i)
• Whether the charge was sufficiently clear and detailed to enable the accused to answer it in accordance with section 70(1)(b) of the Constitution
• The effect of upholding an exception where a not guilty plea has already been entered and the charge cannot be amended

The exception was upheld. In light of the not guilty plea already tendered, a verdict of not guilty was entered and the accused was acquitted.

To establish the offence of subverting constitutional government under section 22(2)(a)(i) of the Criminal Law (Codification and Reform) Act, the State must prove not merely advocacy of overthrowing government, but advocacy of doing so by unconstitutional means. 'Unconstitutional means' means any process not provided for in the Constitution and the law. Constitutional mechanisms exist for removing a President or government before term expiry through lawful means (impeachment under section 97 and vote of no confidence under section 109 of the Constitution). A charge must clearly disclose the essential elements of an offence and provide sufficient detail to enable an accused to answer it, as required by section 70(1)(b) of the Constitution. Mere use of words like 'fight' and 'war' in political discourse does not necessarily imply violent or unconstitutional means. Where an exception is upheld and a charge cannot be amended because it discloses no offence, and a not guilty plea has already been entered, the accused is entitled to a verdict of not guilty and acquittal.

The court observed that it is difficult to decide to dispose of the plea first before dealing with an exception as contemplated in section 171(2) of the Criminal Procedure and Evidence Act. The court noted that the charge against the accused was very serious by nature with a penalty excluding the option of a fine, but was crafted with clarity regarding the forbidden conduct. The court commented that the quoted utterances appeared to be cherry-picked from a larger speech and were not contextualized, with poor grammatical construction and incomplete sentences. The court observed that there is recent precedent in Zimbabwe where a constitutionally elected President (Robert Mugabe) was removed before his term expired in November 2017 through a process found lawful by the courts (Sibanda and Anor v President of Zimbabwe N.O. HH 1082/17). The court remarked that politicians should use temperate language and be measured in their utterances while enjoying constitutional rights, but stated it would be a sad day for criminal jurisprudence if people were tried on the basis of semantics. The court noted that citizens are guaranteed certain rights and that acting unconstitutionally should go beyond mere holding of a microphone by an excitable politician at a rally. The court referenced section 20(3) of the Criminal Code relating to treason, which confirms that doing anything by lawful constitutional means directed at replacing government or the President is not prevented.

This case is significant in Zimbabwean criminal jurisprudence for its interpretation of section 22(2)(a)(i) of the Criminal Law (Codification and Reform) Act concerning subverting constitutional government. The judgment establishes that the offence requires advocacy of overthrowing government by unconstitutional means, not merely advocacy of removing government. The court recognized that constitutional mechanisms exist for removing a sitting President or government before term expiry (impeachment under s 97 and vote of no confidence under s 109). The case reinforces constitutional rights to freedom of expression under section 61 of the Constitution and the right to be informed of charges in sufficient detail under section 70(1)(b). It demonstrates judicial protection of political speech and sets limits on criminalizing political rhetoric. The judgment also clarifies procedural aspects regarding the effect of upholding an exception where a not guilty plea has been entered and emphasizes that charges must be clear and cannot be based on subjective interpretations or semantics. The decision has implications for the balance between national security concerns and democratic freedoms in the context of political discourse.