Blessed Mhlanga: A gross miscarriage of Justice

By Ney Jay

The recent move by the Zimbabwean police force of ‘taking’ Mr Blessed Mhlanga a well-known journalist, into custody without following due process is and ought to be understood for what it precisely is. That move, at the very least, can be said to be an unlawful arrest and at the very best it is and should be understood as a State-facilitated abduction.!!

By definition, abduction is the act of taking someone away by force or deception; and his is precisely the case here. Notwithstanding that the said Mr Mhlanga voluntarily presented himself to the police. The act of locking him up against his will,  under the pretext of law on bogus charges which do not, and will not, withstand the scrutiny of legal reasoning amount to deception.

In circumstances where a journalist, conducts an interview with a person of interest, such a journalist cannot be held responsible for the views of such a person. Any attempts of attaching liability in these circumstances is tantamount to censorship and a gross encroachment on journalistic privileges.

Secondly, and more interestingly, the said Mr Mhlanga isn’t an independent journalist. He is an employee of a media house who was acting as an agent of the company in the normal course of his employment. Therefore, it does not follow that an agent of a company can personally be liable for the alleged wrongful conduct of the company he so works for. The principle of vicarious liability vindicates this assertion and is the legal principle that should be applied in these circumstances.

In furtherance to the above, and notwithstanding the exceptions of vicarious liability, let’s  assume, given these facts, that agents of the company can be held liable. The said Mr Mhlanga did not act alone in the production of the interview in question. He had/has a whole team that works with him. There are directors and production personnel who signed off on the production and broadcasting of the said interview. Against that back drop, a question has to be asked, are the said individuals being prosecuted for same alleged crimes?

If that answer is not in the affirmative, then surely the charges cannot be said to be genuine and or a bona fide investigation leading to a just outcome; they are simply bogus, targeted and malicious in nature and designed to persecute and intimidate.

However, a key consideration in these circumstances is that, an arrest on the basis that the interviewee shared some opinions which may have been a breach of certain acts in the criminal codification brings to the surface the fact that the rule of law isn’t necessarily adhered to in our jurisdiction. The presumption of innocence is a well-known and established principle of law. In its simplest form it is the idea that everyone is to be presumed innocent until a determination of guilt has been made by a competent court of law.

If one is to be true to the aforementioned principle, it does not follow that, a journalist can be arrested on suspicion that the interviewee  shared opinions that may be argued to have been incitement of violence and or undermining the office of the president. Therefore, in so doing, he amplified these remarks to the extent that, in so doing, he played a role that is tantamount to aiding and abetting the accused.

Under normal circumstances, before the interviewer/presenter is even considered for liability, a determination needs to be made on the question, as to whether or not the remarks made by his guest were, in of themselves criminal, in nature. That decision has to be made by a competent court of law.

In circumstances where that determination has NOT been made, any proceeding against the journalist is, at the very least, premature and lacks any basis at law and hence the assertion, state-facilitated abduction.

One would have hoped that, defence would have put a similar argument before the court during his bail hearing and such an argument would have been successful in the absence of any aggravating factors. However, no legal argument can reasonably be expected to be forceful enough in circumstances where there isn’t a legal basis for the charges. Hence  the position this is a case of State-facilitated abduction.

The fact that an abduction has been made by State agents using State resources and hiding behind the law does not in fact change what it is; it is an abduction. It shall remain an abduction and should be addressed and understood as such. To call this an ‘arrest’, sanitises and legitimises the said abduction since there is no basis at law for this so called ‘arrest’. An unlawful arrest as a means to intimidate a journalist is accurately called an abduction.

In opposing ‘bail’, or in refusing to do the right thing, the State incompetently argued that Mr Mhlanga could not be released on ‘bail’ on the basis that, inter alia, the equipment used has not been seized; therefore, the likelihood of him committing similar offences is high.

What the State omitted in its arguments is the fact that, the said equipment does not belong to the journalist in his personal capacity but is the property of the company he works for.  Evident in this line of argument is the fact that, the aim of opposing ‘bail’ is not a bona fide objection in the interests of justice but rather selective persecution of the journalist.

Firstly, if the equipment was not confiscated and the concern is that he may have access to it and ‘reoffend’, then one has to wonder, could the court not make an order restricting him access to the said equipment?

Secondly, the argument that he may interfere with potential witnesses who are his junior colleagues further proves the above made argument, that he acted in the course of his employment and the absence of any claims by his employer that he acted outside the ambit of his employment further solidifies the fact that he acted in the course of his employment. If one accepts that conclusion, then it follows, therefore, that if and only if there is a case to answer then the company is the correct defendant and or respondent.

In conclusion, the above illustrate and presents the inescapable conclusion that, the case of Mr Mhlanga, is not a legal question but rather a misplaced and overzealous persecution of a journalist.

It serves as an example of malicious prosecution to instil fear into all journalists with the overall effect of encroaching onto journalistic privileges and freedom of expression. The continued detention of Mr Mhlanga is a gross miscarriage of justice; one that undermines the rule of law and the public faith in the legal system.

Sound of Justice!!