Top court acquits Japajapa
POLITICAL activist Paddington Japajapa has been freed from jail after more than three months of serving his effective twoyear sentence of inciting public violence after the Supreme Court granted his second appeal on the grounds that the video evidence used to convict him needed to be backed by witnesses.
The Supreme Court agreed to hear his second appeal against conviction and sentence after the High Court rejected his first appeal against both conviction and a three-year jail term imposed by the trial magistrate, with one-year suspended.
A three-judge appeal panel of the Supreme Court Justice Lavender Makoni, Justice George Chiweshe and Justice Susan Mavangira on Friday quashed the conviction of Japajapa in July 2019 for inciting public violence.
After hearing submissions by both the defence and prosecution counsel, the final court of appeal ruled in favour of Japajapa, finding that the State could not lay a foundation for the evidence as required at law.
Professor Lovemore Madhuku, instructed by Mr Fillip Kufakwaro, argued the appeal for Japajapa, while the State was represented by Mr Richard Chikosha.
In this case, the State failed to prove its case beyond any reasonable doubt, according to the judges.
They agreed with Prof Madhuku’s submissions that the State made a fatal mistake of by relying solely on doubtful video evidence without corroboration from any witnesses who may have been present when Japajapa allegedly made the statement that prompted his arrest.
On that basis, the judges found fault in the trial court decision and acquitted Japajapa.
Speaking to The Herald yesterday, Japajapa said despite the minor setback in his political career after the High Court threw out his appeal and ordered him to continue serving the two-year jail sentence, he was now free to continue with active politics, as a member of the ruling Zanu PF.
“I am now free to work for my political party full time without the monkey on my back,” he said.
“The criminal record has now been removed and I am now ready to participate in political processes without any disturbances.”
Japajapa had ditched the opposition CCC for Zanu PF.
He was thrown in jail last October after the High Court rejected his appeal from the magistrates’ court for lacking merit, but he managed to get a hearing before the Supreme Court for a second appeal.
This would have been at the discretion of the Supreme Court.
He had in his first appeal at the High Court argued the trial court blundered at law in basing his conviction on video evidence whose authenticity and reliability had been put in issue without, first of all, pronouncing itself on whether or not the video was authentic and reliable.
Japajapa had also argued that the trial court got it wrong when it placed reliance on the evidence of a witness called by the prosecution to testify as an expert yet his testimony consisted of speculation or conjecture.
In dismissing the appeal, High Court Justice Kwenda, sitting with Justice Felistas Chatukuta, now elevated to the Supreme Court, noted that there was no compelling evidence for the High Court to interfere with the trial magistrate’s decision.
During his original trial, Japajapa initially denied the charge that he had made the utterances attributed to him claiming the inflammatory utterances were added as “voice over” to his picture manipulated by the State to make it appear as if he had addressed a press conference and made the utterances.
Japajapa made statements after the results were announced and at his trial the State submitted what was said to the a video clip of him making these, and this was the main plank of the evidence at his trial.
He was tried and convicted of breaching the country’s electoral laws and hit with three years’ imprisonment, but with one year suspended on condition of good behaviour after his release.
During the trial, Japajapa denied the charge against him, but admitted that it was him who appeared in the video.
He, however, denied making the utterances attributed to him and sought to argue that the video was a “Photoshop” created by the State.
On sentencing, Japajapa failed to advance specific allegations of a misdirection that the sentence induced a sense of shock as he simply asked the court to substitute one at its own discretion.