Political activist Paddington Gabagaba has been released from prison more than three months after serving his effective two-year sentence for inciting public violence after the High Court approved his second appeal on the grounds that the video evidence used to convict him needed support from witnesses. .
The High Court agreed to hear his second appeal against the conviction and sentence after the High Court rejected his first appeal against the conviction and three-year prison sentence imposed by the trial judge, suspended for one year.
The three-judge appeal panel, Supreme Court Justice Lavender Makoni, Justice George Chiweshe and Justice Susan Mavanjira, on Friday overturned Gabagaba’s July 2019 conviction for incitement to public violence.
After hearing submissions from both defense and prosecution counsel, the final court of appeal ruled in favor of Gabagaba, finding that the State could not establish a basis of evidence as required by law.
Professor Lovemore Madhuko, instructed by Mr Philip Covaquaro, argued the appeal for Gabagaba, while the State was represented by Mr Richard Chikosha.
In this case, the state failed to prove its case beyond a reasonable doubt, according to the judges.
They agreed with Professor Madhuko’s submission that the State made a grave error by relying solely on questionable video evidence without corroboration from any witnesses who may have been present when Gabagaba made the statement that led to his arrest.
On this basis, the judges found error in the decision of the lower court and acquitted Gabagaba.
Speaking to the Herald yesterday, Gabagaba said despite the minor setback in his political career after the Supreme Court rejected his appeal and ordered him to continue serving his two-year prison sentence, he was now free to continue active politics as a member. From the ruling ZANU-PF party.
“I am now free to work for my political party full time without the monkey chasing me,” he said.
He added: “The criminal record has now been removed and I am now ready to participate in political processes without any disturbances.”
Gabagaba had abandoned the opposition CCC party in favor of Zanu PF.
He was thrown in prison last October after the Supreme Court rejected his magistrates’ court appeal for lack of merit, but he managed to get a hearing before the High Court for a second appeal.
This could have been at the discretion of the Supreme Court.
He argued in his first appeal to the Supreme Court that the lower court committed an error of law when it based his conviction on video evidence whose authenticity and reliability had been challenged without declaring, first and foremost, whether the video was real or not. trusted.
Gabagaba also argued that the trial court erred when it relied on the evidence of a witness called by the prosecution to testify as an expert, but whose testimony was speculation or conjecture.
In dismissing the appeal, High Court Justice Kwenda, sitting with Justice Felistas Chatukuta, who has now been elevated to the Supreme Court, noted that there was no compelling evidence for the High Court to interfere with the trial judge’s decision.
During his original trial, Gabagaba initially denied the charge that he made the statements attributed to him claiming that the inflammatory statements were added as a “voice-over” to his photo which was manipulated by the state to make it appear as if he was speaking at a press conference and made the statements.
Gabagaba made his statement after the results were announced and at his trial the State presented what was said to be a video clip of him making the statement, which was the main element of evidence at his trial.
He was tried and convicted of violating the country’s electoral laws, and was sentenced to three years in prison, but suspended for a year on the condition of good behavior after his release.
During the trial, Gabagaba denied the accusation against him, but admitted that he was the one who appeared in the video.
However, he denied making the statements attributed to him, and sought to argue that the video was a state-made “Photoshop” program.
In pronouncing the judgment, Gabagaba failed to make specific allegations of misdirection, with the judgment causing a feeling of shock because it simply asked the court to replace it at its own discretion. Herald
