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Legal Monitor - Issue 66
Zimbabwe Lawyers for Human Rights (ZLHR)
October 11, 2010

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Biti takes on police

Movement for Democratic Change (MDC) Secretary-General Tendai Biti's appeal challenging his prolonged detention on terrorism charges in 2008 will be heard by the Supreme Court next week, in a case which exposes the ill treatment regularly meted out to human rights defenders by police, as well as the slow pace of the justice delivery system, in Zimbabwe.

Biti, the country's Finance Minister in a coalition government of bitter rivals President Robert Mugabe and Prime Minister Morgan Tsvangirai, will have his case heard by a Full Bench sitting as a Constitutional Court on Monday next week in which he wants his prolonged detention declared unlawful.

The treason case stemmed from a document police said was authored on 25 March 2008 allegedly linking Biti to illegal change of government plans. Further charges of communicating or publishing falsehoods emanated from Biti's announcement that his party leader Tsvangirai had defeated President Mugabe in an election held in March 2008.

Official results later showed that Tsvangirai had indeed defeated President Mugabe in the poll, but lacked a clear majority needed to avoid a runoff election.

Both charges were withdrawn in February 2009 in what many saw as a political compromise meant to smoothen the process of the MDC agreeing to a coalition government.

Yet Biti's lawyers, Honey and Blanckenberg, will on 18 October appear before the Supreme Court in a matter seeking to overturn a High Court ruling made on 18 June 2008 which declared that Biti's prolonged detention was lawful.

Following an urgent application by Biti's lawyers on 17 June 2008 to challenge the legality of his continued detention for five court-sitting days without being brought before the courts, High Court Judge Justice Samuel Kudya ruled that the police actions in refusing to release him or bring him to court were legal.

Boysen Matema and Crispen Makedenge - the two top police officers regularly linked with the arrest and harassment of rights and political activists - had detained and quizzed Biti on his election pronouncements.

His lawyers filed a Notice of Appeal against Justice Kudya's ruling more than two years ago on 10 July 2008. Assistant Commissioner Matema and Chief Superintendent Makedenge are cited as First and Second Respondents in Biti's appeal.

The Supreme Court's consideration of, and judgment on, the case - only being heard now - will therefore be academic.

It however serves to highlight the slow nature of Zimbabwe's justice delivery system, and how authorities can potentially escape liability for abuses of fundamental rights because cases take too long to be heard and finalised.

Matema and Makedenge arrested and detained Biti on 12 June 2008, 10 days before Tsvangirai pulled out of the 27 June 2008 presidential election runoff citing gross violence and abuses against his supporters, officials and civil society activists. African leaders rejected the runoff, in which President Mugabe insisted on running as a sole contestant, resulting in the negotiated coalition government.

The warrant used by the two policemen was obtained on 6 June 2008 and authorised them to arrest Biti "immediately upon sight" and bring him before the courts on suspected terrorism and communicating falsehoods charges.

Read part of the warrant used by Matema and Makedenge: "These are, therefore, in the State's name to command you that immediately upon sight hereof you apprehend and bring the said person or cause him to be apprehended and brought before the court of a Magistrate to be examined and to answer to the said information, and to be further dealt with according to the law."

Justice Kudya ruled that the word "immediately" on the warrant only served to direct the police to arrest Biti instantly upon sight.

"A reading of the command in the warrant places emphasis on the immediacy of the arrest on sight of the applicant only. The word immediately does not govern the arraignment of the applicant at court," ruled Justice Kudya.

Biti's lawyers, Sarudzayi Njerere and Lewis Uriri argue that Matema and Makedenge were obliged by section 34 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07] to take Biti to the place specifically mentioned in the warrant, adding that the warrant, on the face of it, directed that Biti be brought "immediately" before a Magistrate.

"Even if it held that the warrant authorised detention for so long as was reasonable in the circumstances (i.e., even if a reasonable time were to be in excess of 48 hours), five court days was not a reasonable time. Five court days is twice the period of detention allowed in cases of arrest without warrant.

"Where the arrest is made with a warrant, a reasonable period of detention should, if at all different, be shorter than that in cases of arrest with warrant, because by the time sworn information as to the suspect's guilt is available, investigations would surely be advanced or even nearing completion.

"Even if the detention was impliedly authorised by the warrant, such detention could not have lawfully exceeded 48 hours. The appeal must therefore succeed with cost," stated Uriri in his heads of argument.

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