COURT WATCH 3/2013
[26th February 2013]
The State v Civil Society
This bulletin covers two instances of criminal proceedings launched against members of civil society organisations:
· Zimbabwe Human Rights Association – developments in the current case against ZimRights on allegations of fraud and forgery of voter registration forms and spreading of false statements prejudicial to the State.
· State v Gwisai and Others – an update on the ongoing Arab Spring video case, which started with arrests just over two years ago, in February 2011.
The Zimbabwe Human Rights Association [ZimRights] Cases
13th December 2012: First arrests: The police campaign against ZimRights on allegations of voter registration forgery and fraud commenced on 13th December last year when the police arrived at the ZimRights Offices in Harare, conducted a search and arrested Leo Chamahwinya, ZimRights Deputy National Programs Coordinator, and Dorcas Shereni, ZimRights Highfield Chapter chairperson, who were both on the premises when the search took place. They were taken to Harare Central Police Station. Before being taken to court they spent four nights in police custody without a formal charge being laid against them.
17th December: Appearance in court: Ms Shereni and Mr Chamahwinya made their first court appearance on 17th December 2012 at Harare magistrates court, where they were jointly charged with two other persons, Tatenda Chinaka and Farai Bhani, who had been arrested before them but are not employed by ZimRights. Defence lawyer Admire Rubaya applied for bail for all the accused. The State requested time to go through the defence submissions and was allowed two days, but on the 19th the bail hearing was again postponed, this time to the 21st. The accused remained in custody.
The charges: Once brought to court, the accused were charged with contravening sections 31, 136 and 137 of the Criminal Law Code. Section 31 of the Code criminalises publishing or communicating false statements prejudicial to the State. Sections 136 and 137 criminalise fraud and forgery respectively. The penalties on conviction are: a fine of up to $5000 or up to 20 years imprisonment for false statements or fraud; and a fine of up to $5000 or up to 35 years imprisonment for forgery. The allegation was that Shereni, Chamahwinya, Bhani and Chinaka produced fake copies of voter registration certificates in a bid to defraud the Registrar-General’s Office and discredit the voters roll. Bhani was said to have obtained a genuine voter registration certificate, which was then used to make the fake certificates.
Also on 17th December: ZimRights Bulawayo office raided: the ZimRights Bulawayo office was thoroughly searched by police looking for looking for “subversive material linked to illegal registration of voters”. No arrests were made.
21st December: Bail denied: On 21st December the magistrate dismissed the bail application for all the accused. The accused through their lawyer noted an appeal in the High Court against the magistrate’s decision. In early January a High Court judge dismissed the appeal.
14th January: ZimRights Director Okay Machisa arrested: On 14th January ZimRights director Okay Machisa, having been summoned for questioning, reported at Harare Central Police Station accompanied by his lawyer, Beatrice Mtetwa. Mr Machisa was arrested and detained at Rhodesville Police Station on charges of contravening the same sections of the Criminal Law Code, based on the same allegations, as his two colleagues. On 15th January, Mr Machisa appeared in the magistrate’s court for a bail hearing. However, the prosecutor asked for the bail hearing to be postponed to 16th January, and Mr Machisa was remanded in custody until that date.
16th January: Machisa denied bail: On 16th January the magistrate refused to grant Mr Machisa bail, saying the charges were serious and Mr Machisa was a flight risk. An appeal was immediately noted against this decision.
23rd January: ZimRights charged as an organisation: On 23rd January at police request ZimRights board member Nunurai Jena reported to Harare Central Police, Law and Order Section, for questioning, accompanied by his lawyer Selby Hwacha. They learned that police intended to prosecute ZimRights as an organisation on the charges already levelled against Mr Machisa and the other accused. Mr Jena signed a warned and cautioned statement on behalf of Zimrights in the presence of his lawyer; he was not arrested because the charge is against ZimRights the entity, represented by Mr Jena, not against him personally [and an entity cannot be physically arrested and held in custody].
29th January: Machisa granted bail by High Court judge: Although his bail hearing was initially set down for 21st January, there were several postponements until the judge at last heard the defence and prosecution arguments on 28th January and on the 29th granted Mr Machisa $500 bail on condition that he give the court security in the form of immovable property and surrender his passport. Shereni, Chamahwinya, Chinaka and Bhani were still in custody at Chikurubi Maximum Prison.
8th/18th February: Shereni and Chamahwinya granted bail: Dorcas Shereni was granted bail by Justice Mwayera on 8th February [$500 and weekly reporting to police] And on 18th February Chamahwinya was also granted bail [$1000 plus reporting conditions]. Chinaka and Bhani were still in custody.
20th February: Magistrate grants further remand When Shereni, Chamahwinya, Chinaka and Bhani appeared in court again on 20th February, the defence opposed the prosecutor’s application for a postponement, citing the State’s failure to fix a trial date. The magistrate accepted that the police needed more time to investigate this “complex case” and granted a postponement until 4th March; Shereni and Chamahwinya remained on bail, the other two in custody.
Next court appearances: The five accused individuals are due back in court on 4th March, and Mr Jena, representing ZimRights, the organisation, on 11th March. A joint trial of the individuals and the organisation on the same charges is expected in due course.
The Arab Spring Video Case: State v Munyaradzi Gwisai and 5 Others
State Loses its Bid to Appeal against “Lenient”Sentence
This case has featured in previous Court Watch bulletins: 2/2012 of February 2012, 5/2012 of 14th March, and finally Court Watch 9/2012 of 4th May 2012 which recorded:
· the conviction and sentence imposed on Munyaradzi Gwisai, University of Zimbabwe law lecturer and local International Socialist Organisation leader, and his five co-accused on a charge of conspiracy to commit public violence
· the noting of appeals against conviction and sentence by Mr Gwisai and his co-accused
· the Attorney-General’s stated intention to cross-appeal against the sentence on the basis that it was too lenient.
In February 2011 a local branch of the International Socialist Organisation arranged a meeting to watch videos and discuss the implications of the recent demonstrations in North African countries that had resulted in regime change. During the meeting the police arrived and arrested 45 persons, who were held in police cells before being taken to court and remanded in custody on treason charges. In March 2011, 39 of them were released because the State did not have sufficient evidence to prosecute them. Mr Gwisai and 5 others continued in custody on the treason charge, but were later granted bail. In April the State reduced the charge to inciting, alternatively conspiring, to commit public violence. A long-delayed and long-drawn out trial, interrupted by many postponements, took place.
Found guilty and sentenced
On 19th March 2012 the magistrate found all six accused persons guilty of conspiracy to commit public violence, and sentenced each of them to two years in prison, wholly suspended for five years on condition of good behaviour; plus a $500 fine or, in default of payment, 30 days’ imprisonment; plus 420 hours of community service to be performed at schools in Harare.
Appeal against conviction and sentence The magistrate dismissed an application by defence lawyer Alec Muchadahama for the community service order to be suspended pending the defence appeal against conviction and sentence. This necessitated an urgent defence application to the High Court, where Justice Mathonsi promptly set aside the magistrate’s decision and ordered the suspension of the community service pending the determination of the defence appeal. [Note: Community service must be performed despite the noting of an appeal, unless the magistrate grants a special application for it to be suspended – Magistrates Court Act, section 63(b)(ii).]
January 2013 – State’s bid to increase sentence dismissed The Attorney-General duly made his threatened application for leave to appeal against the “too lenient” sentence, and have a more severe sentence imposed. It was lodged in terms of section 62 of the Magistrates Court Act, which allows the Attorney-General, with the leave of a High Court judge, to appeal against any sentence imposed in a criminal case if he considers the sentence was:
· incompetent in law [such as a fine where the Act concerned says a prison sentence must be imposed], or
· inadequate, either in the light of the facts of the case as the magistrate saw them, or because the sentence was based on findings of fact for which there was no evidence or on a view of facts which could not reasonably be entertained.
[Note: The Attorney-General’s right to appeal against sentence has no equivalent in our sister legal systems in England and South Africa.] The application came before Justice Hungwe, who dismissed it in a judgment dated 16th January. The Attorney-General’s application had been filed late and did not comply with the rules of court. Justice Hungwe said this alone was grounds for dismissing the application. The judge went on, however, to consider the merits of the application, saying that the test to apply was whether the Attorney-General’s proposed appeal would have a “reasonable prospect of success on appeal”. His conclusion was emphatic: the case made by the Attorney-General did not explain how his appeal came within the parameters of section 62 and his proposed appeal “does not enjoy any prospect of success”.
Defence appeal against conviction and sentence still pending The defence appeal, which did not need special leave from a judge, is still pending. The cause of the hold-up has been the delay in the preparation of the record of proceedings in the magistrates court. It is of interest that Justice Mathonsi, when suspending the community service order in May last year, expressed the opinion that there was a good chance of the defence appeal succeeding.
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