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Recent court cases affecting governance and rule of law - Bill Watch 4/2010
Veritas
January 30, 2010

Court Cases affecting Elections

On Voting Procedures for the Visually Impaired: On 28th January the Supreme Court struck down section 60 of the Electoral Act, which requires polling station officials to assist visually impaired voters to mark their ballot papers. The court said this was inconsistent with the constitutional right of citizens to vote in secret [Constitution, section 23A, a provision added by Constitution Amendment No. 19 in February 2009]. This means the Electoral Act will have to be amended to allow visually impaired voters to vote in secret – suggested methods include being assisted by a trusted person of the voter’s own choice, Braille ballot papers or other measures that have been adopted in other countries.

Challenge to Presidential Election in Supreme Court: On 21st January a five-judge bench of the Supreme Court dismissed Mr Justin Chiota’s bid to overturn the March 2008 Presidential election. The full reasons for judgment will be given later. Mr Chiota, a would-be Presidential candidate in 2008, relied on the Supreme Court’s August 2008 declaratory order stating that he and Mr Daniel Shumba had been unlawfully turned away by the nomination court. But the Supreme Court said the 2008 decision did not entitle him to an order re-opening the nomination court proceedings or overturning the election – because there was no basis in the evidence before the court for concluding that the election result might have been different if Mr Chiota’s name had been on the ballot paper. [Supreme Court’s 2008 judgment available.]

Court Cases affecting Parliamentarians

Roy Bennett Case: Roy Bennett [MDC-T] was sworn in as a Senator by the President of the Senate on 18th March 2009. But although allocated the post of Deputy Minister of Agriculture, Mechanisation and Irrigation Development by the Prime Minister, he has still not been sworn in as such by President Mugabe. The excuse given is that he is facing serious criminal charges, a stance which violates the fundamental principle that a person is innocent until proved guilty. [Note: other Ministers have been sworn in although facing serious charges.] Senator Bennett was arrested in February 2009 and detained for over three weeks before getting bail. He was charged with possessing arms for insurgency purposes and conspiring to commit acts of insurgency only in November when his High Court trial started. The trial adjourned in early December and resumed on 12th January. The State’s key witness, Peter Hitschmann, refused to give evidence implicating Bennett. The Attorney-General tried to “impeach” [discredit] Hitschmann by producing selected statements of his and a video-taped interview purporting to implicate Bennett. The judge ruled that the statements and the video were inadmissible, having been disallowed at Hitschmann’s own trial as he claimed they were made after he had been subjected to torture. The judge did allow the Attorney-General to cross-examine Hitschmann as a hostile witness, but he could elicit nothing implicating Bennett. The trial has now been adjourned until 3rd February for the judge to consider a defence objection to the State’s production of emails involving Bennett, said to be from Hitschmann’s computer, without expert evidence as to their authenticity.

Deputy Minister Acquitted: On 20th January Deputy Minister of Women’s Affairs, Gender and Community Development Evelyn Masaiti [MDC-T] was acquitted on a charge of fraud alleging misuse of agricultural inputs. At the close of the State case the magistrate upheld the defence submission that the State had failed to make out a case for Mrs Masaiti to answer.

Trial of Constitution Select Committee Co-Chairperson Postponed: Douglas Mwonzora, MDC-T MP for Nyanga North and co-chairperson of the Parliamentary Select Committee for the new Constitution, was summoned to stand trial mid-January on a charge of insulting President Mugabe by calling him “a goblin” during a March 2008 election campaign speech. But the prosecutor called off the trial and said he would issue a fresh summons. Mr Mwonzora has denied the charge and questioned the delay in bringing it, suggesting that the prosecution is a ploy to interfere with his constitution-writing duties.

Judgment Expected on Challenge to Election of Speaker: In this case Jonathan Moyo, ZANU-PF MP for Tsholotsho [formerly Independent, but recently welcomed back into ZANU-PF] has asked the High Court to nullify the election of Lovemore Moyo, MDC-T, as Speaker of the House of Assembly, because the voting was not conducted properly by secret ballot. The case was heard in July 2009 by Justice Patel, but judgment was deferred.

On SADC Tribunal Judgments

On Enforcement in Zimbabwe: On 26th January Justice Patel dismissed an application for the registration and enforcement in Zimbabwe of the SADC Tribunal’s decision of 28th November 2008 in the Campbell case. The application had been brought by Gramara (Pvt) Ltd, one of the 79 successful applicants in the Campbell case. In that case the Tribunal decided that section 16B of the Constitution and the Government’s land reform programme were in breach of the SADC Treaty, and ordered that applicants already evicted from their farms must be properly compensated and that the Government must protect applicants still on the land and ensure they were not evicted. Justice Patel rejected the Government’s argument that the Tribunal was not validly constituted and decided that the Campbell case was within the Tribunal’s jurisdiction and that its judgment was binding on Zimbabwe at the international law level. However, he ruled that the Tribunal’s judgment could not be enforced in Zimbabwe because to do so would be to impugn the legality of the land reform programme as implemented by section 16B of the Constitution and sanctioned by a 2007 decision of the Supreme Court – and therefore would be contrary to Zimbabwe’s “public policy”. [Text of Gramara judgment available.]

On enforcement in South Africa: Three farmers dispossessed of their farms in Zimbabwe under the land reform programme have lodged an application in the North Gauteng High Court for the registration of the SADC Tribunal’s Campbell judgment. Their objective is enforcement of the Tribunal’s judgment in South Africa, for instance, by attaching Zimbabwe government assets in South Africa. [Note: In December the same court issued an order recording the South African government’s undertaking to respect and honour the rulings and orders made by the Tribunal in the Campbell case in terms of South Africa’s own obligations under the SADC Treaty.] [Full text of earlier order available.]

Chiadzwa Diamond Field Developments

In the latest legal development on Chiadzwa the Chief Justice has ordered that all diamonds extracted from the mining claims taken from African Consolidated Resources [ACR] in 2006 must be handed to the Reserve Bank for safe-keeping pending the determination of the appeal against Justice Hungwe’s decision of 24th September 2009 restoring the claims to ACR. This ruling temporarily replaces that part of Justice Hungwe’s order directing the return of the diamonds to ACR. This should halt, for the time being, any attempts by the Government’s joint venture partners to sell diamonds extracted from the ACR claims. The Government had already called off an auction announced by Mbada Mining for 7th January, citing Mbada’s failure to follow proper procedure and its non-compliance with Kimberley Process requirements agreed to by the Government in November. Potential buyers would also have been deterred by ACR’s public warnings that diamonds slated for auction were stolen property and that Interpol had been alerted. Meanwhile, the Environmental Management Authority [EMA] has lifted its ban on Mbada’s mining activities.

On Justice System

Police Harassment of Legal Practitioners: Justice Chitakunye has ordered the Commissioner-General of Police to investigate incidents detailed in an application brought by the Law Society, Zimbabwe Lawyers for Human Rights and six individual legal practitioners complaining of police obstruction of legal practitioners in the course of their lawful professional duties. Assaults, threats and denial of access to clients were among incidents cited. The judge also ordered the Commissioner-General and his officers to refrain from hindering legal practitioners from exercising their rights and warned that officers flouting the order will be guilty of contempt of court. In a recent example of harassment, Harare lawyer Mordecai Mahlangu was arrested and remanded on an obstruction of justice charge on the strength of a letter he wrote to the Attorney-General on behalf of Peter Hitschmann, explaining his objections to giving evidence in the Bennett trial. On 14th January a Harare magistrate threw out the charge, ruling that the facts alleged by the State did not constitute an offence. Mr Mahlangu has announced his intention to sue the Attorney-General, the co-Ministers of Home Affairs, the Commissioner-General of Police and the arresting police officers for damages for wrongful arrest and unlawful detention.

Note on Justice System

Judge-President Rita Makarau at the opening of the legal year in Harare drew attention to the fact that the Judicial Service Act of 2006 has not been brought into operation and that as a result magistrates are still members of the Public Service, under the control of the executive and not accountable to the Chief Justice and the Judicial Service Commission. [Note: The Judicial Service Act, although gazetted in January 2007, will not come into operation until a date fixed by the President in a statutory instrument. The Act provides for the transfer of magistrates from the Public Service to a new Judicial Service, which will include Supreme Court and High Court judges, judges of special courts and magistrates, and will be administered by the Judicial Service Commission. As members of a unified judiciary coming under the Judicial Service Commission rather than the Public Service Commission magistrates would be in a position to function as truly independent judicial officers.] [Available: (1) Full text of Judge-President’s address and (2) Judicial Service Act.]

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