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Constitutional cases - Court Watch 6/2012
Veritas
March 30, 2012

Constitutional Appeals to Supreme Court

Prosecutions Which Have Taken Too Long

Freedom of Expression Appeals

Compensation for Torture

1. Prosecutions which have Taken too Long

Comment: A disturbing trend has become apparent i n which the police or prosecutors revive what some lawyers are labelling “archive cases” – criminal cases dating back several years but previously dropped by police or prosecutors for various reasons. Available figures show that this happens more frequently when the accused person is an MDC-T supporter.

Bringing an archive case before the court again is legally possible because in such a case the proceedings were stopped before plea – i.e. before the charge was formally put to the accused in court and his or her plea recorded by the judge or magistrate. In such a case the accused is merely discharged, not acquitted – which means that he or she can legally be prosecuted at a later date. Only an acquittal after plea prevents a person from being brought to court again for the same offence. This means that although discharged from custody or released from remand, the accused person in an archive case is on paper liable to find himself back in court at any time for 20 years from the date of the alleged offence – or, where the charge is murder, indefinitely [the statutory limitation period for all offences, except murder, is 20 years – Criminal Procedure and Evidence Act, section 26]. That is why a magistrate discharging an accused person before plea often warns him or her that the State retains the right to revive the case.

Bringing up an old case can, however, be unfair to the accused, depending on the circumstances. Which is why the Constitution gives everyone charged with a criminal offence the right to be tried “within a reasonable time” [Constitution, section 18].

A recent example: State v Tongai Matutu

In late July 2005 Tongai Matutu, now MDC-T MP for Masvingo Urban and Deputy Minister of Youth Empowerment, Indigenisation and Empowerment, was arrested on allegations that he had insulted and undermined President Mugabe by likening him to a dog and had incited people to turn against the government during a MDC party rally in Zaka, on 25th June 2005. The charges were under POSA [this was before the Criminal Law Code came into force in 2006 and the POSA provisions were replaced by similar provisions in the Code]. Mr Matutu was released and the charges were not pursued.

It was nearly 6 years later, in May 2011, that police served Mr Matutu with a summons repeating the old charges and the case came up in the Gweru magistrates court in July 2011. As all the State witnesses failed to show up, the magistrate postponed the case indefinitely. In February 2012, Mr Matutu applied to the magistrate in terms of section 24(2) of the Constitution, asking for the case to be referred to the Supreme Court for a ruling that his constitutional right to trial within a reasonable time has been infringed and for a permanent stay of prosecution – which would mean that the State could never again resuscitate the case.

On 24th February the magistrate granted Mr Matutu’s application, so the case now stands referred to the Supreme Court. It is unlikely to be heard by that court for some time, as it cannot be set down for hearing until the Supreme Court has received the transcript of the proceedings in the magistrates court.

Comment: This is only one of many constitutional cases which have been referred to the Supreme Court but have not been dealt with because the necessary transcripts have not yet reached the Supreme Court.

2. Freedom of Expression Cases: A Growing List

The MMPZ 3

This case – involving Media Monitoring Project of Zimbabwe personnel Gilbert Mabusa, Fadzai December and Molly Chimhanda – first hit the headlines in early December 2011 when they were arrested in Gwanda on allegations of spreading falsehoods undermining the President in contravention of section 33 of the Criminal Law Code, and convening a gathering contrary to POSA. They were allowed bail of $50 by the magistrate, but the prosecutor immediately invoked section 121(3) of the Criminal Procedure and Evidence Act and they remained in custody while the Attorney-General appealed to the High Court in Bulawayo against the magistrate’s decision. Hearing the appeal commendably swiftly, Justice Mathonsi dismissed it as “spectacularly devoid of merit” and the three were released. But, they were still obliged to return to Gwanda every two weeks for remand. In due course the State dropped the other charges, leaving only the charge of undermining the President. On 8th February the magistrate granted an application by their lawyer Kossam Ncube for the issue of the constitutionality of section 33 of the Criminal Law Code to be referred to the Supreme Court for a ruling. Mr Ncube argued that the section infringes the constitutional rights to freedom of expression and protection of the law, being couched in such wide and vague terms that it has a chilling effect on freedom of expression because it is not clear to people what they can and cannot say without courting arrest and prosecution. The accused were then remanded, still on bail, to 30th April, by which date the magistrate, perhaps optimistically, said she expected to know the Supreme Court’s decision.

Like the Matutu case, this case has not yet been set down for hearing. It joins a growing list of waiting Supreme Court cases raising the constitutional issue of freedom of expression, for example:

• Standard editor Nevanji Madanhire and reporter Patience Nyangove
• a second Standard case involving Mr Madanhire and reporter Nqaba Matshazi
• MDC-T MP Lynette Karenyi [charge: insulting the President contrary to section 33 of the Criminal Law Code]

Comment: Apart from record transcription problems, another factor contributing to delay could be that the Supreme Court would prefer not to hear these cases until it has delivered its long-awaited decision in the case in which Vincent Kahiya and Constantine Chimakure, who at the time were editor and political editor of the Independent, appealed on a similar constitutional issue of freedom of information. This case has already been argued before a five-judge Supreme Court bench in June 2010.

Pishai Muchauraya MP Hon Muchauraya also has an application waiting for attention by the Supreme Court. In 2010 he was summoned to Murambinda magistrates court to answer a charge of undermining the President’s authority, contrary to section 33 of the Criminal Law Code, by references to the President’s advanced age and state of health. The magistrate in due course dismissed an application for the case to be referred to the Supreme Court for a ruling on the constitutionality of section 33. Feeling that the magistrate had erred, his lawyers then lodged an application in the Supreme Court for the reversal of the magistrate’s decision. The hearing of that application has so far been delayed in deference to a State request for more time, but Hon Muchauraya’s lawyers have said they will now apply to have the matter set down for early hearing. As the Supreme Court vacation is imminent, no hearing can be expected before May at the earliest.

Comment: The prolonged absence of an authoritative, up-to-date Supreme Court pronouncement on these freedom of expression cases has an adverse effect on this fundamental right. It means that, with elections ahead, politicians and ordinary citizens remain uncertain about what they can and cannot safely say about the leader of one of the political parties, because he is also the head of State. As lawyer Kossam Ncube explained when asking for the MMPZ 3 case to be referred to the Supreme Court, in the present situation it is left to the subjective evaluation of law enforcement agents to decide what statements are acceptable, and this has “a chilling effect as it muzzles even genuine hard hitting criticism of the President.” This means that the section effectively shields the President from any kind of scrutiny and seeks to create a situation whereby only good things must be said about him lest someone invites the wrath of the law.

3. Claim for Compensation for Torture

A former soldier, Wilfred Jaure, has brought a case in the Supreme Court seeking an award of $1.5 million as compensation for unjust imprisonment and torture he alleges he underwent during 277 days of confinement in 2008-2009 while he was held in an army detention barracks designated for convicted offenders. The defendants cited are Minister of Defence Emerson Mnangagwa, in his official capacity representing the Government, and, in their personal capacities, Lieutenant Huni of Army Headquarters and Warrant Officer Class 1 Muzira of the Army Counter-Intelligence Unit, who, Mr Jaure says, both viciously tortured him during his detention.

Mr Jaure, then a sergeant in the Army’s Commando Regiment, was detained by the Army Counter-Intelligence Unit in 2008 on suspicion of involvement in providing classified information to an enemy – an accusation he denies. He effectively became a “disappeared” person until freed 277 days later, as his family did not know where he was or even if he was still alive. He was never charged with or tried by court-martial for any offence.

The Court papers filed in the Supreme Court on 6th March on his behalf say he was suddenly released without explanation on April 28, 2009 and demoted. [Thereafter, he resigned from the force in September 2009.] In his affidavit in the application, Mr Jaure explains the direct approach to the Supreme Court as follows: “Torture is a very serious transgression and cannot be equated to assault for which a victim can claim normal delictual compensation ... serious enough to warrant this honourable court to fashion the remedy of constitutional damages in terms of its powers outlined in section 24 (4) of the Constitution.”

Comment: What is different about this case is that it is a direct application to the Supreme Court for compensation for conduct in breach of the Declaration of Rights in the Constitution, probably the first of its kind. This distinguishes it from the cases of other torture claimants, who have taken action for damages in the High Court – notably Jestina Mukoko, who only went to the Supreme Court for, and was granted, a declaration confirming the unconstitutionality of the mistreatment to which she was subjected when abducted and detained in 2008. Subsequently she brought proceedings for compensation in the High Court – proceedings which have not yet come to trial.

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