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Update on ongoing cases - Court Watch 9/2012
Veritas
May 06, 2012

Updates on Ongoing Cases

This bulletin surveys progress - or lack of it - in court cases that have already been covered in detail in earlier issues. The beginning of the new court term on Monday 7th May means that the Supreme Court and High Court will be sitting again after a break of some six weeks. It is hoped that these unfinished cases of public interest will be promptly concluded.

State v Munyaradzi Gwisai and 5 Others - the Arab Spring Video Case

In Court Watch 2/2012 in February and Court Watch 5/2012 of 14th March, this trial was covered up to the end of the defence case, with the magistrate due to deliver judgment on 19th March.

Case Reminder: In February 2011 a meeting was arranged by an International Socialist Organisation branch to watch videos and discuss the implications of popular demonstrations in North Africa. Police arrived; 45 persons were arrested, taken to court and remanded in custody on treason charges. In March 2011, 39 of them were freed for insufficient evidence. Mr Gwisai and 5 others continued in custody on the treason charge, but were granted bail later in March by judge. In April the State reduced the charge to inciting, alternatively conspiring, to commit public violence. The trial in the magistrates court started on 14th September and proceeded with many interruptions to March this year.

Developments

Conviction and sentence

On 19th March the magistrate found all five accused guilty of conspiracy to commit public violence. Defence lawyer Alec Muchadehama argued that the appropriate sentence would be a fine of not more than $500, and the prosecutor asked for the maximum prison sentence of 10 years. On 21st March the magistrate sentenced each of the accused to:

• two years in prison, wholly suspended for five years on condition of good behaviour; and
• a $500 fine or, in default of payment, 30 days’ imprisonment; and
• 420 hours of community service to be performed at schools in Harare, starting on 31st March.

Appeals to the High Court by both defence and State

The defence lodged an appeal to the High Court against both the conviction and the sentence, which Mr Muchadehama described as “harsh and misplaced”. The State lodged a cross-appeal against the sentence, asserting that it was too lenient. The two appeals will be heard together on a date to be fixed.

High Court suspends community service pending appeal

On 27th March, Mr Muchadehama made an application to the trial magistrate for the suspension of the community service order pending the appeal. Three days later the magistrate dismissed this application, obliging Mr Gwisai and his five fellow “conspirators” to start performing their community service. Mr Muchadehama then applied to the High Court to get that decision overruled, and on 13th April Justice Mathonsi suspended the community service order pending the appeal. The judge said this was appropriate because there was a good chance of the defence appeal against conviction succeeding.

Current Status

The accused are awaiting a hearing by the High Court of their appeal against conviction and sentence, and the State’s cross-appeal against sentence.

State v Douglas Mwonzora, MP and 21 Others – Charged with Public Violence

This case was covered in Court Watch 3/2011 of November 2011.

Case Reminder

After an MDC-T rally in Nyanga, Mr Mwonzora and his co-accused were arrested and detained in February 2011, on allegations of public violence. Their release on bail was delayed until 12th March 2011 by the State’s use of section 121(3) of the Criminal Procedure and Evidence Act and its subsequent unsuccessful appeal. At a later remand hearing the magistrate granted a defence request to refer constitutional issues [complaints of inhuman and degrading treatment, violation of constitutional rights to liberty and protection of the law, and the unconstitutionality of section 121(3) of the Criminal Procedure and Evidence Act] to the Supreme Court. The State’s attempt to have the trial started in spite of this referral to the Supreme Court was rejected by the magistrate and the State then appealed to the High Court for that decision to be overturned.

Developments since November

On 26th January, at a routine remand hearing, the Nyanga magistrate granted a defence application for the refusal of further remand. This was not an acquittal. It simply meant that the accused would no longer have to make periodic appearances in court for remand hearings while waiting for the outcome of the High Court and Supreme Court appeals arising from the case. If, as a result of these appeals, the prosecution gets a green light to proceed with the public violence case, it would have to revive it by issuing summonses.

Current status

The accused are at liberty but still have the possibility of future prosecution hanging over them, depending on the Supreme Court’s decision on the defence’s constitutional issues and on the outcome of the State’s appeal to the High Court to have the criminal case heard without waiting for the decision of the Supreme Court case.

State v Solomon Madzore and 28 others: the Glen View 29 murder case

This case was covered in Court Watch 4/2012 of 9th March. Further developments were noted in Court Watch 5/2012 of 14th March. At that stage the start of the High Court trial, which had been due to begin on 12th March, was delayed for the court to consider pre-trial defence applications. The Easter court vacation, from 7th April to 6th May, delayed the case further.

Case Reminder

In May 2011 Police Inspector Mutedza died as a result of injuries received in a scuffle with members of the public at Glen View 3 shopping centre. Seeming to ignore eye-witness accounts, police carried out a blitz, arresting 29 MDC-T members and officials - 26 from May to September, with 2 more arrests in October and one on 25th January 2012. At various bail hearings 27 accused were released on bail but one of them was later remanded in custody on an unrelated charge; 7 of them endured nearly 9 months in prison before release. Solomon Madzore, the MDC-T Youth Assembly chairperson, and Paul Rukanda, a district party office-holder, were refused bail. On 1st March all were committed for trial when the indictment charging them with Mutedza’s murder was served on them at the magistrates court. The committal for trial resulted in all of them being returned to custody in remand prison - even those previously released on bail.

Developments

Defence outline lodged

The defence outline was lodged on Monday 30th April. The defence team is now ready for the trial to begin.

No decisions yet on pre-trial defence applications

On 22nd March the trial judge, Justice Bhunu, heard defence and prosecution submissions on a defence application for renewal of bail for the 27 accused who had been granted bail before committal for trial on 1st March, and on a separate bail application for Solomon Madzore and Paul Rukanda, who had all along been denied bail. The State maintained its opposition to bail on the grounds that the accused are a flight risk. The judge reserved judgement indefinitely, pending lodging of the defence outline. As this was tantamount to a refusal of bail, the defence team applied for leave to appeal to the Supreme Court for bail; but there has been no decision from Justice Bhunu on this application either.

Current Status

The accused are being held in custody in remand prison, waiting for the start of their trial – and for the judge’s decision on their bail applications. The arrest and continuing detention of Mr Madzore has led to several demonstrations by MDC-T youth demanding their leader be either put on trial or released.

Supreme Court Backlog of Constitutional Cases

In earlier issues of Court Watch Veritas has mentioned cases referred to the Supreme Court that: have been heard and decided, but in which the written reasons for judgment are still awaited; or have been heard but not decided, i.e., have been indefinitely adjourned for later handing down of the court’s decision; or have not been heard or even been set down for hearing.

Developments

There has been no forward movement in any of these cases since our earlier issues.

Decided Case in which written judgment awaited [Court Watch 2/2011]

Jestina Mukoko case - Mrs Mukoko succeeded in her application to the Supreme Court for a permanent stay of prosecution on the ground that her unlawful abduction and detention and torture and inhuman treatment, by State agents before she was taken to court, were in breach of her constitutional rights. A unanimous five-judge court granted her application in September 2009, saying its reasons for judgment would be given later. Those reasons have still not been provided two and a half years later. This delay is almost certainly inhibiting progress in other cases - both civil and criminal - in which the legal effect of torture and unlawful detention of accused persons by State agents has become an issue.

Case in which decision nearly two years overdue [Court Watch 4/2011]

Chimakure and Kahiya case – a freedom of expression/press freedom challenge to the constitutionality of section 31(1)(b) of the Criminal Law Code [false news story alleged]. Arguments were heard in June 2010 but the court’s decision has still not been handed down. A decision in this case, if accompanied by reasons for judgment, would assist the lower courts and the Supreme Court itself in dealing with the many cases – criminal cases in particular – in which freedom of expression issues have arisen. Several such cases already referred to the Supreme Court for guidance remain unheard [examples below].

Cases awaiting set-down for hearing

Previous bulletins have mentioned several such cases, for example:

Freedom of expression cases – cases referred for Supreme Court decision on the constitutionality of statutory provisions invoked in prosecuting newspaper editors and journalists and civil rights activists and a well-known artist [sections 31 and 96 of the Criminal Law Code – spreading falsehoods, criminal defamation]:

• State v The Chronicle editor and a journalist [Court Watch 2/2011]
• State v Three Media Monitoring Project staffers [Court Watch 6/2012]
• State v The Standard editor and journalists [two cases] [Court Watch 4/2011]
• State v Pishai Muchauraya MP [Court Watch 6/2012]
• State v Owen Maseko [Court Watch 2/2011 notes this case, which involves the constitutionality of the prosecution of Mr Maseko for his Gukurahundi murals at the Bulawayo Art Gallery]

Cases challenging section 121(3) of the Criminal Procedure and Evidence Act

State v Mwonzora and Others; State v Shonhe; State v Karenyi [Court Watch 8/2012 of 25th April]

Case challenging State’s revival of an old criminal charge

State v Matutu [see Court Watch 6/2012 of 29th March for a note on the State’s 2011 revival of a 2005 case against MDC-T MP Tongai Matutu].

Need for Improved Transcription Services to Fully Utilise Supreme Court

The time-worn excuse for delay in setting down cases for argument in the Supreme Court is failure by the official transcription service to provide in good time the necessary records of proceedings in the courts from which the cases come. The serious shortage of transcribers has been notorious for many years, and as a result the Supreme Court’s capacity to hear cases is not being fully utilised. As the transcription service is now under the control of the Judicial Service Commission, it is to be hoped that the Commission can take effective steps to remedy the situation.

As things are, the new Supreme Court term will get off to a very slow start. The cause list for the first week of term is empty - no cases at all will be heard. No constitutional cases have been set down for hearing during the whole of May - even though one day every week - Thursday - is traditionally reserved for the hearing of constitutional cases. It seems the supply of cases ready for hearing is insufficient to keep the Supreme Court judges fully occupied. But this is no excuse for delays in delivery of written judgments on which other cases hang.

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