Man acquitted of cyberbullying after witchcraft accusations

The High Court has overturned the conviction of a Harare man who had been found guilty of cyberbullying his uncle by accusing him of witchcraft through WhatsApp messages, ruling that investigators failed to properly establish the origin of the electronic evidence used against him.

Tendai Mpofu, who was represented by lawyer Editor Mabuto, had been convicted by a magistrates' court for contravening Section 35 of the Cyber and Data Protection Act.

The complainant in the matter was Lameck Shonhiwa.

According to the State's case, Mpofu allegedly sent WhatsApp messages and audio recordings between April 30 and June 11, accusing his uncle of being a witch and blaming him for the deaths of relatives. The messages allegedly contained insults and threats of violence.

As part of the investigation, the complainant's Samsung A03 cellphone was submitted to the Zimbabwe Republic Police Cyber Laboratory Forensic Science Department for analysis.

However, Mpofu denied the allegations and pleaded not guilty, maintaining that he had never sent the messages in question.

He told the court that Shonhiwa was his uncle and that they had maintained a cordial relationship with no significant disputes between them.

Mpofu also challenged the forensic evidence, arguing that the investigation was incomplete because only the complainant's cellphone had been examined while his own device was never subjected to forensic analysis.

He further argued that there was no direct evidence linking him to the messages and that the forensic report failed to establish that the communications originated from his phone. He also questioned the absence of WhatsApp server verification and metadata from the service provider.

Despite those arguments, Magistrate Lisa Mutendereki convicted Mpofu, finding that the State had proved its case beyond a reasonable doubt.

She sentenced him to six months' imprisonment, with three months suspended on condition of good behaviour and the remaining three months converted to 105 hours of community service.

Mpofu subsequently appealed against both conviction and sentence.

The appeal was heard by Justices Benjamin Chikowero and Maxwell Takuva, who ruled in his favour and set aside the conviction.

In their judgment, the judges found that the investigation was fundamentally flawed because police only examined the complainant's cellphone and failed to seize and analyse the accused person's device.

The court held that for electronic evidence to be reliably linked to an accused person, investigators must establish the source of the messages through comprehensive forensic examination.

The judges concluded that because only one device had been examined, there was no conclusive evidence proving that the messages originated from Mpofu's phone.

They further ruled that in cyberbullying cases, both the complainant's and accused person's devices should ordinarily be subjected to forensic examination to enable investigators to trace the origin of the alleged offensive communications.

The ruling is likely to have broader implications for the investigation and prosecution of cybercrime cases, highlighting the importance of thorough digital forensic procedures in establishing the authenticity and origin of electronic evidence presented in court.