In Court This Week
Monday 13th
September: High Court, Harare, 10 am. Start of the first of the
civil trials in which the 2008 abductees claim damages for torture,
unlawful arrest, detention etc. [See further below.]
New
Cases of Public Interest
Prosecutions
over Gukurahundi Murals at Bulawayo Art Gallery
Last month’s
gazetting of the Board of Censors’ banning of artist Owen
Maseko’s “Gukurahundi murals” at the Bulawayo
Art Gallery has coincided with the revival of prosecutions against
Owen Maseko and the acting director of the gallery. Mr Maseko
is now to be charged, not just under the Censorship and Entertainments
Control Act, but with the more serious offence of publishing false
information likely to spark public disorder or public violence
contrary to section 31 of the Criminal
Law Code – for which the penalty is an unlimited fine
or up to 20 years’ imprisonment. This prosecution is likely
to prompt a constitutional case challenging official restrictions
on freedom of expression.
WOZA
to Sue over Inhuman and Degrading Conditions in Police Cells
70 members
of Women
of Zimbabwe Arise [WOZA] have formally notified the co-Ministers
of Home Affairs [Kembo Mohadi of ZANU-PF and Theresa Makone of
MDC-T] that they intend to bring a constitutional case in the
Supreme Court over the conditions under which they were detained
in police cells at Harare Central Police Station for four nights
in April. Their detention followed their arrest for demonstrating
against poor service delivery by national electricity supplier
ZESA. The allegation is that the filthy and unsanitary conditions
of the cells, lack of running water, denial of palatable food,
etc., constituted inhuman and degrading treatment in contravention
of section 15 of the Constitution.
High
Court Challenge to Legality of “Extra” Ministers
In an interesting
if belated development, concerned citizens have asked the High
Court to annul the appointments of 8 of the Inclusive Government
ministers. They argue that as the GPA
Article 20, incorporated into the Constitution by Constitution
Amendment No. 19, limits the number of Ministers to 31 [ZANU-PF
15, MDC-T 13, MDC-M 3], the President acted unlawfully in appointing
41 Ministers. The “unlawful” Ministers are identified
as those who signed oaths of loyalty and office after their party
quotas under the Constitution had been filled by those who signed
the oaths prior to them. The Ministers concerned are: Savior Kasukuwere,
Joseph Made, Walter Mzembi, Flora Bhuka, Sylvester Nguni [ZANU-PF],
Henry Madzorera, Giles Mutsekwa and Sekai Holland [MDC-T]. [Note:
John Nkomo was also sworn in late but is no longer a Minister.]
The implications of the case are wide-ranging – among other
things the applicants claim that all executive acts by the Ministers
concerned are null and void, including the making of regulations
– such as the Indigenisation
Regulations, made by Mr Kasukuwere. The Government has lodged
notice of opposition. No date has yet been fixed for the hearing
of the case.
Constitutional
Cases in Supreme Court
Judgments
Awaited
Jestina Mukoko
case: It is now nearly a year since the Supreme Court granted
Jestina Mukoko’s application for a permanent stay of prosecution
on the ground that her constitutional rights had been seriously
infringed. The court issued a brief order to that effect and said
that its full judgment would be handed down later. A delay of
this length for an important Supreme Court judgment is regrettable.
Press Freedom
Case: This is the case heard in June, in which Zimbabwe Independent
journalists Vincent Kahiya and Constantine Chimakure challenged
the constitutionality of section 31 of the Criminal Law Code under
which they were facing charges for publishing false information.
WOZA Freedom
of Assembly Case: In this case heard last year, Women of Zimbabwe
Arise [WOZA] leaders Williams and Mahlangu challenged the constitutionality
of section 41 of the Criminal Law Code under which they were charged
following a procession broken up by police.
Roy Bennett
case: The Chief Justice’s decision is still awaited on the
State’s application for leave to appeal against Mr Bennett’s
acquittal by the High Court in May this year; the Chief Justice
heard the case on 28th July.
Former Attorney-General’s
Case: On 6th September the Supreme Court heard an appeal by former
Attorney-General Gula-Ndebele [he was removed from office by the
President on the recommendation of a special tribunal headed by
Justice Bhunu]. The appeal was against a January High Court decision
that dismissed his application to set aside the tribunal’s
recommendation on the grounds that it was grossly unreasonable
and prompted by bias and improper motives. The Supreme Court’s
decision is pending.
New
Case on School’s Dreadlocks Ban
Due for hearing
in the Supreme Court on Thursday 16th September is a constitutional
case a father has brought against a school over its objections
to his children's dreadlocks. The case raises the Declaration
of Rights’ protection of freedom of religion and of expression.
High
Court Cases of Interest
Chiadzwa
Diamonds Case: High Court Nullifies Earlier Judgment
Justice Hungwe
has set aside his own September 2009 judgment which declared African
Consolidated Resources [ACR] to be the lawful holders of mining
claims in the Chiadzwa
diamond field. On Monday 6th September, ACR’s lawyers
and the government’s lawyers [the government had asked for
the reversal of the pro-ACR judgment] were told Justice Hungwe
had his judgment ready and would hand it down at 10 am. Lawyers
and interested members of the public then spent the day waiting
for the judge. It was only after State press representatives arrived
at about 3.30 pm that the judge appeared and read out his judgment.
He rejected an ACR objection that the Government side should be
denied a hearing because it had come to court with “dirty
hands”, having illegally defied the Chief Justice’s
January 2010 order for all mining activity on the disputed claims
to cease pending a further Supreme Court ruling. The judge also
ruled that ACR had obtained judgment in its favour by misleading
the court over the legal status of the subsidiary companies at
the time the claims were registered. ACR deny this and have said
they will note an appeal to the Supreme Court. They need Justice
Hungwe’s written judgment for their appeal, but it has not
been forthcoming.
Torture
Compensation Claim Trial in High Court on 13th September
On Monday
13th September Judge-President Chiweshe will start hearing the
first of many civil cases against the State and individual security
force officers brought by the abductees of late 2008. The case
was meant to start on 30th August but did not take off then because
the defendants’ lawyer was unable to attend. A stand-in
lawyer for the defendants applied for an indefinite postponement
so that all the cases [there are 17 in all, including one brought
by Jestina Mukoko] could be heard together later. Judge-President
Chiweshe granted a two-week postponement and rejected the application
for the trials to be joined.
About the
case: Plaintiff Mapfumo Garutsa was abducted at the end of November
2008 and was among those listed as “disappeared”;
he was held secretly for a month by State agents before being
brought to court for the first time on 29th December as one of
the so-called “bomber group”. He claims $190 000 for
unlawful arrest and detention and malicious prosecution and for
his treatment at the hands of State agents during his detention,
citing torture, inhuman and degrading treatment, denial of medical
treatment and denial of access to his lawyer. There are 14 defendants,
comprising 7 Ministers and security force commanders, in their
official capacities, and 7 named police, CID and CIO officers,
cited in their personal capacities. Judge-President Chiweshe has
been a High Court judge since 2001 but has only recently returned
to the bench after serving for five years as chairman of the Zimbabwe
Electoral Commission. He was appointed Judge-President in May.
Acquittal
of Human Rights Lawyer Muchadehama Challenged by State
Nine months
after Alec Muchadehama’s acquittal on a contempt of court
charge the State has applied to the High Court for leave to appeal
against the acquittal. The case has been assigned to Justice Patel
but as yet no date has been fixed for a hearing. Zimbabwe
Lawyers for Human Rights have issued a strong statement condemning
the State’s application as frivolous and unprocedural and
pointing to its potential to inconvenience Mr Muchadehama at a
time when he is engaged in major litigation against government
Ministers and State officials [he is plaintiff Mapfumo Garutsa’s
lawyer in the torture claim case and acts for the plaintiffs in
most of the other torture cases].
Legal
News from the Recent AU Summit
Decisions
taken at the AU Summit in Kampala, Uganda, in July included the
following:
