THE High Court yesterday questioned the State if there was a legal obligation for incarcerated MDC Alliance vice chairperson Job Sikhala to surrender himself to the police after they issued a press statement that did not disclose any offence against him.
In a bail appeal hearing, High Court judge, Justice Erica Ndewere, questioned claims by the police that they searched for Sikhala at his residence, workplace and farm in vain.
She said the police had failed to produce a log diary before the court to demonstrate efforts they made in trying to locate the firebrand politician.
“Is this not just a mere assertion (that they searched for him) by the investigating officer without the log diary?” the judge queried.
The State, led by Austin Muzivi, insisted it was police routine to invite suspects for interviews, hence Sikhala should have handed himself in. He also said the politician was aware of the charges against him.
Muzivi said the log diary would be produced during the trial as it is contained in the case docket.
Ndewere reserved judgment indefinitely. The judge said she appreciated issues of bail were urgent, but could not give a specific date for the ruling as she needed time to go through all the submissions and case laws referred to in the hearing.
In his appeal, Sikhala says Harare magistrate Lazini Ncube erred in denying him bail for fear that he would abscond, saying it was clear that there was nothing to run away from.
Through his lawyers, Eric Matinenga, Harrison Nkomo and Jeremiah Bamu, Sikhala argued that he faced a serious offence of treason in Masvingo where he was alleged to have stated that the MDC Alliance would overthrow President Emmerson Mnangagwa before 2023, utterances he says were more serious than the ones he is facing.
Sikhala is facing allegations of inciting public violence ahead of July 31 demonstrations after allegedly stating: “People from Zambezi to Limpopo to Forbes Border Post to Victoria Falls, 31 July 2020 should be your day. “This is the kind of war that we have. If we do not fight this war, nothing will come out until we die.
“These men have oppressed the people for a long time. This time they have to kill, really kill us. These men have stolen our youth.
“We did not enjoy it at all. All the people in London are heeding the message that on the day, they will besiege our embassies even those in America, they will be in action on 21 and 31 July. Those in Australia and South Africa are all saying they will be taking action. I will fight the State since I’m not easily intimidated.”
Muzivi argued that Sikhala’s conduct showed that he was not a suitable candidate for bail as he was only nabbed a month after a notice of his arrest was issued. Claims are that Sikhala was found hiding in a ceiling at a house in Tynwald North and only came out after the police threatened to fire teargas at him.
“The finding by the court a quo that appellant went into hiding for some time before he could be arrested is inconsistent with established evidence in that no evidence was adduced by the State of any effort to contact appellant for him to surrender himself to the police at any stage.
“No evidence was adduced by the State that they made it public that they wanted the appellant in connection with any offence,” Sikhala’s lawyers argued.
They further stated that the police press statement of July 27 does not state the offence which he was wanted for, hence he had no reason to surrender himself to the police.
“Even then, there is nothing ex facie the press statement that appellant was sought in connection with the commission of any offence.
“Instead, he was being sought on account of being an activist, which in itself is not an offence.
“No legal obligation arises for one to surrender self to the police merely on account of being labelled an activist by the police,” Matinenga argued.
After the court session, Nkomo told the media that a sick Sikhala was yet to be attended to by his private doctor for his swollen feet. Nkomo said they were hoping by the end of yesterday he would have been seen by his doctor.