COURT WATCH 15/2012

[24th August 2012]

Supreme Court on Vacation - Cases Pending

The Supreme Court is on its mid-term vacation which will come to an end on 2nd September.  It is hoped that when it resumes it will be able to clear the backlog of cases waiting to be heard.  This bulletin lists cases of particular interest that are waiting to go before the Supreme Court.  Only one case has been given a hearing date.  The other cases are still to be given dates. 

State v Mwonzora et al on 4th October

This case is set down hearing before five judges on Thursday 4th October.  It is the case in which Douglas Mwonzora and twenty-one of his Nyanga constituents have challenged the constitutionality of their prosecution on charges of public violence.  After an MDC-T rally in Nyanga, Mr Mwonzora and his co-accused were arrested and detained in February 2011, on allegations of public violence.  Their release on bail was delayed until 12th March 2011 by the State’s use of section 121(3) of the Criminal Procedure and Evidence Act and the subsequent unsuccessful State appeal.  At a later remand hearing the magistrate granted a defence request to refer constitutional issues to the Supreme Court: inhuman and degrading treatment, violation of constitutional rights to liberty and protection of the law, and the unconstitutionality of section 121(3) of the CPE Act.  [For more details see Court Watch 3/2011 and Court Watch 9/2012]

Provincial Governors Case: President Persists in Attempt to Appeal

Reminder: The Prime Minister brought a case against the President in the High Court for unilaterally appointing provincial governors in 2010 in breach of the Constitution’s provision requiring the Prime Minister’s agreement to such appointments.  The President tried to block the case with a technical objection that the Prime Minister should have obtained, but did not, the leave of the High Court before launching a case against the President.  Justice Chiweshe, citing a previous Supreme Court case, dismissed this argument and on 24th July refused leave to appeal against his decision.

As expected [see Court Watch 14/2012 of 28th July] the President, as permitted by law, made a second application for leave to appeal to the Supreme Court.  This application, made on 3rd August, will be decided by a Supreme Court judge.  The Prime Minister has filed papers opposing the granting of leave to appeal, and a ruling is now awaited. 

If leave to appeal is granted, the President’s technical objection will go before the Supreme Court for hearing.  If that happens and if the President’s technical objection is then upheld by the Supreme Court itself, the Prime Minister would have to start all over again by applying to the High Court for leave to initiate the case against the President.  As the case dates from 2010 and has taken so long to reach this stage, it would, perhaps, be fruitless to try starting all over again – the GPA will have ended before finalisation could be hoped for.

If the Supreme Court judge refuses leave to appeal, Justice Chiweshe’s decision dismissing the  technical objection stands, and the High Court will be able to get on with hearing the Prime Minister’s case against the President.  If this happens, there may be some hope the case will finish before the end of the GPA.  A point may then be made, but it will still be too late to be of much practical relevance.

Mutambara v Ncube – MDC Leadership Dispute

Two High Court judges have ruled that Welshman Ncube, not Arthur Mutambara, is the lawful President of the MDC – Justice Kamocha on 15th December 2011 and Justice Patel on 12th June 2012.  Both judges rejected the Mutambara camp’s attack on the validity of Professor Ncube's election at the party’s congress in January 2011.  Both decisions have been temporarily neutralised by the noting of appeals to the Supreme Court by Professor Mutambara and his supporters.  A hearing is awaited.

Long Standing Constitutional Cases Awaiting Dates for Hearing

The following cases, referred to the Supreme Court for judgements on constitutional challenges arising from cases in lower court, are still awaiting hearing dates.  These cases have been outlined in previous Court Watch bulletins indicated below [back copies of Court Watches available from veritas@mango.zw]

Freedom of expression cases

These are criminal cases where the accused have questioned the constitutionality of provisions of the Criminal Law Code – section 31 [spreading falsehoods]; section 33 [undermining the authority of or insulting the President] ; and section 96 [criminal defamation].  These provisions have been frequently invoked to prosecute journalists, civil rights activists and artistic protest.   In one case the police also used section 42 – causing offence to persons of a particular race, tribe, colour, creed, etc.  In another [the MMPZ case], the defence lawyer said  that section 33 “infringes the constitutional rights to freedom of expression and protection of the law, being couched in such wide and vague terms that it has a chilling effect on freedom of expression because it is not clear to people what they can and cannot say without courting arrest and prosecution.”  This is true of all the sections cited above.

• The Chronicle editor and a journalist [Brezhnev Malaba, now former editor, and Nduduzo Tshuma].  In this case the State prosecuted on a criminal defamation charge based on a story alleging corrupt conduct by senior police officers.  [Court Watch 2/2011]
• Owen Maseko  This case raised the constitutionality of prosecuting Mr Maseko for his murals depicting the Gukurahundi at the Bulawayo Art Gallery.  The charge was insulting the President.  He was also charged for causing offense to persons of a particular tribe.  [Court Watch 2/2011]
• The Standard editor and journalist [Nevanji Madanhire, editor, and Patience Nyangove]  This was another criminal defamation charge.  [Court Watch 4/2011]
• The Standard editor and journalist State v Nevanji Madanhire, editor ,and Nqaba Ntshazi]  Criminal defamation again.  [Court Watch 6/2012]
• Media Monitoring Project staff members [Gilbert Mabuza, Fadzai December and Molly Chimhanda.  The arrests were made during a training workshop – several charges were brought – an illegal gathering under POSA; participating in a gathering with intent to promote public violence or breaches of the peace under Criminal Law Code section 37;  but these were dropped, leaving only the charge of undermining of the President.  [Court Watch 6/2012]
• MDC-T MP, Pishai Muchauraya.  A case alleging undermining/insulting the President by colourful references to his advanced age and state of health.  [Court Watch 6/2012]
• MDC-T MP, Lynette Karenyi.  Another case alleging undermining/insulting the President.  [Court Watch 2/2012]

Cases Challenging State Blocking Bail

Section 121(3) of the Criminal Procedure and Evidence Act enables a prosecutor to delay the release of an accused person who has been granted bail by a court, simply by telling the court that the State wishes to appeal against the grant of bail.  Repeated misuse of this power by prosecutors has been criticised by the High Court, the legal profession and civil society.  [See Court Watch 8/2012 and Court Watch 9/2012].  It has also led to MDC-T Chief Whip, Innocent Gonese MP, tabling in Parliament of a Private Member’s Bill, currently stalled, to repeal the section. 

MDC-T Director General Toendepi Shonhe  This case, raising the constitutionality of section 121(3) was referred to the Supreme Court in 2009.  It has still not been heard, nether has a date been set.  [The same point has also been raised more recently, in conjunction with separate constitutional issues, in two other pending cases already mentioned above: State v Douglas Mwonzora et al [to be heard on 4th October] and State v Lynette Karenyi.  Despite being granted bail by a magistrate, MP Mwonzora was detained for another 24 days, and MP Karenyi spent Christmas 2011 behind bars after her arrest for allegedly insulting the President in a speech at a party rally. 

Case Challenging State’s Unfair Revival of an Old Criminal Charge

MDC-T Deputy Minister Tongai Matutu challenged the constitutionality of the State’s 2011 revival of a 2005 case against him for insulting the President in circumstances in which he alleges revival is unjustified.  [Court Watch 6/2012]

Case claiming compensation for torture: Jaure v Minister of Defence

A former soldier seeks $1.5 million compensation for alleged unjust imprisonment and torture during 277 days of confinement in army detention barracks in 2008-2009.  Unusually, the plaintiff has gone direct to the Supreme Court instead of bringing a claim for damages in the High Court [Court Watch 6/2012]. 

More Recent Constitutional Cases Awaiting Hearing Dates

[not previously mentioned in Court Watch]

Transmission of HIV  Three cases are pending before the court involving persons charged with contravening section 79 of the Criminal Law Code.  The section is headed “deliberate transmission of HIV”; it penalises not only transmission of HIV by someone who knows that he or he is infected, but also by someone who knows there is a real risk or possibility that he or she is infected.  The defence contention is that section 79 is unconstitutional and invalid, because it is too wide, vague and generally worded; discriminates against HIV positive people in a manner not acceptable in a democratic society; and criminalises sexual encounters to which the complainants have consented.  These cases have, at defence request, been referred to the Supreme Court by magistrates in terms of section 24 of the Constitution. 

Criminal nuisance – another WOZA case  On 7th February 2012, members of WOZA were charged with criminal nuisance contrary to section 46 of the Criminal Law Code, specifically with “conduct likely materially to interfere with the ordinary comfort, convenience, peace or quiet of the public or likely to create a nuisance or obstruction”.  The prosecution says that ten WOZA members, while displaying placards and distributing fliers in Bulawayo streets, disturbed the free flow of both pedestrian and vehicle traffic.  On 20th June 2012 a Bulawayo magistrate, at the request of WOZA lawyers, referred to the Supreme Court the question whether or not their constitutional right to freedom of assembly had been violated.  Their argument was that the Constitution permits derogation from this constitutional right only in terms of a “law” meeting certain requirements [Constitution, section 21].  The defence contends that the Code’s provision cited is so wide, general and uncertain in scope that it is not a law. 

ZBC listener’s licence fees  In the midst of ZBC’s current blitz against unlicensed listeners, Harare magistrates, at the accuseds’ request, have referred to the Supreme Court two prosecutions of unlicensed possessors of TV sets.  The question for the court’s decision is whether constitutional rights are infringed by the Broadcasting Services Act’s provision compelling everyone who possesses a radio or television receiver to buy an annual licence from ZBC, whether or not the receiver is used to receive ZBC broadcasts.  The accused persons allege violation of various constitutional rights: freedom of expression, freedom of association and protection from discrimination.

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