In case you missed it, here is a breakdown of Justice Chitapi's judgement in which he dismissed Hopewell Chin'ono's bail appeal yesterday.
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In the main charge, it was alleged that the appellant, Hopewell Chin'ono committed the offence of incitement to commit public violence as defined in s187 (1)(a) of the Criminal Law (Codification and Reform) Act.
In the second alternative, it was alleged that the appellant committed the offence of incitement to participate in a gathering with intent to promote public violence, breach of peace or bigotry.
In the course of the application for remand, the appellant's counsel raised complaints against police treatment including the fact that he was exposed to other persons in the investigations who were not members of the police.
The complaints were noted on the court record.
It is noted that the appeal judge (Justice Chitapi) only had jurisdiction to disturb or set aside the order appealed against if the appellant establishes a misdirection of law, fact or both committed by the magistrate.
At the magistrate's court, the state opposed bail citing that Chin'ono's release may enable him to continue with his campaign for the 31 July demonstration and that he would likely interfere with evidence.
The magistrate denied Chin'ono bail on grounds that he might continue campaigning for the 31 July demonstration.
The High Court judge noted that the grounds of appeal brought by Chin'ono's legal team were misplaced as they were directed at establishing that he was not guilty. The judge therefore denied to be drawn to question the basis for the remand
In Chin'ono's appeal to the high court, his defence argued that the magistrate ignored that Hopewell is a journalist reporting on topical issues.
It also argued that citizens are entitled to peacefully demonstrate and that the constitution provides for constitutional removal of a President and that there is nothing unlawful for citizens to demonstrate for this.
The magistrate reasoned that Chin'ono's mood and intention in composing and broadcasting the tweets was to incite protests which were not peaceful.
It was the magistrate's finding that Chin'ono advocated for change through violence as a weapon because he discounted the elections route on the basis that the elections would be rigged and that the Judiciary was comprised of co-looters who would endorse rigged elections.
"The magistrate cannot be said to have been misdirected to reason that the tweets advocated for confrontation as opposed to peaceful protest. Chin'ono also tweeted that change would come by any means and that the consensus was that "ZANU PF Must Go"."
It was also apparent from the tweets that none of them speak to peaceful protest but to doing away with ZANU PF. It would not have been unreasonable to hold as the learned magistrate did that the tweets amounted to inciting violence.
"The potential and probability of violence was there because it would have been foolhardy to expect that ZANU PF members would hold their hands and simply "go away" on account of protests."
Justice Chitapi said it was unprofessional for Chin'ono's legal team to attack the magistrate Mr Nduna by saying it was his practice to deny bail to high profile or politically motivated cases.
In the High Court appeal, Chin'ono's team said the situation had changed since the demonstration did not happen.
Justice Chitapi said new facts which arise after the determination of a denied bail application cannot be considered on appeal, hence the judge refused to take these events into account.
Overall, the High Court judge determined that the appellant (Hopewell Chin'ono) failed to demonstrate any misdirections of the fact, law or both made by Magistrate Nduna, thus dismissing the appeal.
