Citizens Coalition for Change (CCC) interim leader and former senator Jameson Timba and 65 other party activists will remain in jail after Magistrate Collet Ncube ruled that they have a case to answer in the matter they are accused of participating in an unlawful gathering.
The magistrate however set free 12 individuals including Timba's son, Shaun ruling that they were caught in a dragnet arrest.
The group was arrested on June 16 this year on allegations of participating in an unlawful gathering and disorderly conduct.
All of them were however found not guilty and acquitted on the count of disorderly conduct.
The 78 had applied for discharge at the close of the State's case arguing that the State had no evidence to nail them.
Timba's son, Sean had filed a separate application for discharge arguing that the evidence placed before the court did not warrant him to be put to defence because prosecutors did not prove that he was guilty.
Timba and other activists had sought discharge arguing that they cannot be charged with disorderly conduct or participating in an unlawful gathering because they were not in a public space.
They also said the police used a dragnet arrest approach.
Some said they were arrested while going about their personal business near Timba's house.
The magistrate noted that the state failed to prove that the accused were in a public space.
"This court is satisfied that the gathering was inside the premises, not outside. This is contrary to the evidence by the State that it was outside No' 6 Downroad."
"Now what is public space," he said before reading out the definition.
Ncube ruled, "Having defined public space this courts view is that Timba's residence is not a public space and the charge falls off as it cannot stand.
"There's no evidence to prove essential elements of an offense as alleged by the State.
"The accused cannot be placed on their discharge on the count of disorderly conduct despite that there was pandemonium.
"I pronounce that they are all not guilty and acquitted on the count of disorderly conduct."
On the count of participating in an unlawful gathering the magistrate said when the police decided to arrest the activists it was lawful.
"Taking into account that it was a gathering which attracted people who did not reside at the premises, also considering that there was pandemonium, it creates a prima facie case.
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"However, this court is cautious that there are a few whose defence was very clear in this case.
"Combination of facts in this court's view convinces this court that some might have been caught in crossfire and were not part of the gathering."
He went on to acquit 11 individuals.
"The confirmation by the police that there were some people on the road adds credibility to these people defense and these are Resca Munetsi,who was collecting money in Avondale, Violet Chitsindi who had visited a friend, Simon Size who was looking for peace jobs, Calvin Charumapasi a vendor, Redeem Mandizvidza who was distributing fliers,Tatenda Mukwembi a driver, Tawanda Mukucha, Prince Madhena who was at the shops, Wisdom Nyama was passing by, Tobias Mangwayana a vendor and Lucia Kandemiiri a tenant at Timba's residence.
"The finding of this court is that these cannot be placed on their defence in count and accordingly they are found not guilty and acquitted in the first count.
"The balance will proceed to defense case," he ruled.
