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Treason charges against Munyaradzi Gwisai & others - Index of articles
Violence, recrimination and arrests after policeman's death in Glen View - Index of articles
Update on ongoing cases - Court Watch 9/2012
May 06, 2012
on Ongoing Cases
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
v Munyaradzi Gwisai and 5 Others - the Arab Spring Video Case
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.
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.
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
- 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.
to the High Court by both defence and State
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.
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.
are awaiting a hearing by the High Court of their appeal against
conviction and sentence, and the State’s cross-appeal against
State v Douglas Mwonzora, MP and 21 Others – Charged
with Public Violence
This case was
covered in Court
Watch 3/2011 of November 2011.
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.
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.
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
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
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.
outline was lodged on Monday 30th April. The defence team is now
ready for the trial to begin.
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
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.
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.
There has been
no forward movement in any of these cases since our earlier issues.
Case in which written judgment awaited [Court Watch 2/2011]
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.
which decision nearly two years overdue [Court
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].
set-down for hearing
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,
- State v The
Chronicle editor and a journalist [Court Watch 2/2011]
- State v
Monitoring Project staffers [Court
- 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]
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]
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].
for Improved Transcription Services to Fully Utilise Supreme Court
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
makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
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