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Legal Monitor Issue 83
Zimbabwe Lawyers for Human Rights (ZLHR)
March 07, 2011

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AG boob costs villagers . . . as lice feast on Gwisai

Lawyers have complained to the Judge President that the State has mishandled the case of Movement for Democratic Change MP, Hon. Douglas Mwonzora and 23 Nyanga villagers - facing charges of committing violence - to prolong their stay in remand prison.

Hon. Mwonzora and the villagers have been in custody variably for more than three weeks despite being granted bail on 21 February.

The State invoked the notorious Section 121 (3) of the Criminal Procedure and Evidence Act (Chapter 9:07) that suspended the bail for seven days pending an appeal against bail by the State. The Appeal was filed on Friday 25 February 2011 and served on Hon. Mwonzora's lawyers the next Monday on 28 February, together with a Notice of Set Down, setting the matter down for last Friday.

But the matter was not heard last Friday because of what defence lawyers suspect was intentional bungling by the prosecutor in the case, Edmore Nyazamba, leaving Hon. Mwonzora and the villagers to endure more time in remand prison.

Zimbabwe Lawyers for Human Rights is representing Hon. Mwonzora and the villagers.

The case, together with that of 45 activists languishing in custody since their arrest on treason charges on 19 February show how the law has been used to punish political and rights activists in Zimbabwe, rights lawyers say.

Lawyers representing Hon. Mwonzora and the villagers on Friday asked Judge President, Justice George Chiweshe, to intervene and ensure justice was done.

"The chain of events is suggestive of vindictive malice on the part of the State, particularly with the regard to the delays being witnessed in bringing respondents to court," wrote ZLHR.

"Our first complaint relates to the date of set down which failed to comply with Rule (3) as read with sub-rule (1) of the High Court of Zimbabwe (Bail) Rules, 1991, SI 109/91 as amended by SI 32 of 1996. The said Rule obliges the Registrar to set the matter within 48 hours of the appeal having been filed. The appeal is date-stamped Friday 25 February 2011. The mandatory 48- hour period lapsed on Tuesday 01 March 2011. For some strange reason, the Registrar chose not to give effect to the requirements of the cited Rules and set the matter down for Friday 04 March 2011 without any explanation as to why the clear provisions of the Rules were not being complied with.

"On the 3rd of March 2011, we filed our Response to the Appeal, and took the precaution of cross checking whether the matter had been put on the court roll for Friday 04 March 2011. To our shock and surprise, the matter did not appear on the roll. Our inquiries revealed that the Attorney General's office only got the Appeal stamped and neglected to return a copy in the record as they had been directed to after stamping it and serving a copy at our offices. As such, we were advised that there was no copy of the appeal on record and consequently the matter had not been enrolled for hearing on Friday 04 March 2011. The matters that had been put on the roll for 04 March 2011 had been transmitted to Justice Omerjee, whom we understand will be presiding over Bail hearings on Friday 04 March 2011. We were advised by his Clerk that His Lordship, Justice Omerjee indicated that he will only deal with the matters that had been enrolled for Friday 04 March 2011."

Hon. Mwonzora's lawyers said they then liaised with Nyazamba and jointly penned a letter requesting that the matter be heard on Friday 04 March 2011 as originally set down. But the matter was still not enrolled for Friday 04 March 2011 as anticipated on the same argument that it had not been originally included on the Roll for that day.

"This is the basis of our second complaint. The urgency of bail hearings has been made naught in this case. Through no fault of their own, Respondents are being made to bear the brunt of continued incarceration, and thereby suffer continued deprivation of their right to liberty, even after the Magistrates court granted them bail.

"This is not an ordinary case, as it has taken this long due to the invocation of Section 121 (3) of the Criminal Procedure and Evidence Act (Chapter 9:07), which has already ousted the court's jurisdiction, and which in several matters is awaiting argument on constitutionality at the Supreme Court. Already, in our view, our clients have unnecessarily suffered unjustified continued incarceration in contravention of their fundamental rights, in particular, the right to liberty and presumption of innocence. The chain of events described above is suggestive of vindictive malice on the part of the State, particularly with the regard to the delays being witnessed in bringing respondents to court. On each occasion, the State has brought the Respondents at the very last minute, after intense lobbying to them on our part."

The matter has now been reset for today. Meanwhile, lice have been feasting on Munyaradzi Gwisai in remand prison, where private doctors eventually managed to examine the detainees last Thursday as ordered Magistrate Munamato Mutevedzi.

Lawyers who accompanied the doctors said Gwisai exhibited a vicious lice-induced rash all over his body.

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