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Update on legal issues - Bill Watch 36/2010
Septebmer 12, 2010

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:

  • criticism of the UN Security Council for not having deferred the International Criminal Court [ICC] proceedings against Sudanese President el Bashir as requested by the AU
  • condemnation of “blatant abuse” of the Principle of Universal Jurisdiction by non-African states [Note: the principle of universal jurisdiction is the principle of international law under which states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of the accused person’s nationality, country of residence or other link with the prosecuting country. It is typically applied to serious crimes such as genocide, crimes against humanity, torture, etc. on the basis that they are crimes against all mankind.]
  • the election of five new judges of the African Court for Human and People’s Rights, from Algeria, Tanzania, Malawi, Nigeria and Cote d’Ivoire
  • the election of six new members of the African Committee of Experts on the Rights and Welfare of the Child, one of them Zimbabwean High Court Judge Alfas Chitakunye
  • endorsement of an initiative to create an African Framework for Constitutional Justice

Comment: although the AU Protocol on Peace and Security mandates it to cooperate and work closely with relevant UN Agencies in the promotion of peace, security and stability in Africa, the first two items above show significant African opposition to international judicial institutions and their effect on “national sovereignty”. This is also reflected by the current review of the role, functions and mandate of the SADC Tribunal

SADC Tribunal Under Review

In response to Zimbabwe’s outright rejection of the legality of the establishment of the SADC Tribunal and of the Tribunal’s decisions in the land acquisition cases brought by dispossessed commercial farmers, the August SADC Summit in Windhoek decided that “a review of the role, functions and terms of reference of the SADC Tribunal should be undertaken and concluded within 6 months”. The review is being undertaken by the member States’ Ministers of Justice and Attorneys-General. The six months will be up on 17th February 2011. This means that at least for the time being there will be no action taken by SADC on the Tribunal’s third contempt ruling against Zimbabwe. This ruling was handed down on 16th July, when the Tribunal decided that it would again report to the SADC Summit that Zimbabwe has failed to comply with the Tribunal's substantive rulings in the land acquisition cases. Factors cited by the Tribunal included continued harassment and evictions of farmers after its second contempt ruling; a letter to the Tribunal from Justice Minister Chinamasa rejecting the Tribunal and its decisions; and the Zimbabwe High Court decision in the Gramara case.

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