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Court news and judgments in by-elections and Maguwu/CIO cases- Court Watch 22/2012
Veritas
December 16, 2012

Court Closure for Holidays

The Supreme Court and the High Court started their six-week Christmas “court vacation” on 1st December. The vacation will end when the first court term of 2013 begins on Monday 14th January 2013. The 2013 court calendars for the Labour Court, Supreme Court and High Court have just been re-gazetted in GNs 605/2012 and 606/2012 [available from veritas@mango.zw].

During the vacation no appeals, trials and contested court applications will be heard. This does not mean that all the judges will be on holiday for the whole of the period. Duty judges will be available at all times to deal with urgent matters and chamber applications. Since 1st December, for example, High Court Judge-President Chiweshe sitting in chambers dealt with the latest episode in the Kunonga/Anglican Church case, and in the Supreme Court a chamber application has been heard for bail for accused persons in the Glen View murder case.

Circuit Courts Revived in Magistrates Courts

The Judicial Service Commission has announced that since it took over the administration of the judicial service in 2010, it has succeeded in reactivating 37 magistrates circuit courts. These courts had been shut down in 2008 owing to lack of resources and essential staff. All 50 prescribed circuit courts are now operational. Circuit court arrangements permit resident magistrates to hold court periodically – say, once a week – in remote parts of their magisterial districts, eliminating the expense and inconvenience involved in witnesses and police having to travel long distances for court hearings and bringing justice closer to home.

Justices of Peace for Attorney General’s Office

In accordance with a previous long-standing practice, the Attorney General, his three Deputy Attorneys-General and 15 State Counsel Grades I and II have been gazetted as Justices of the Peace by the co-Ministers of Home Affairs. Under the Justices of the Peace and Commissioners of Oaths Act, Justices of the Peace are ex officio commissioners of oaths and also have powers to have disturbers of the peace arrested. Under the Criminal Procedure and Evidence Act they also have power to issue arrest warrants, search warrants and warrants for further detention of arrested persons. But, unlike English Justices of the Peace, they do not judge cases in courts.

Two recent High Court Judgements Available

The By-Elections Case: The President v Bhebhe, Mguni and Mpofu

Note: The official text of Judge President Chiweshe’s latest judgement in the High Court in the by-elections case has become available. It contains the reasons for his decision of 17th October [see summary of third High Court case below] which extended the deadline to the 31st March 2013 for by-elections to be called.

Background - In August 2009 three sitting MPs lost their House of Assembly seats after their expulsion from the party [then MDC-M] on whose ticket they had been elected in the 2008 general election. Under the Constitution and the Electoral Act, the President should have promptly called by-elections to fill the vacancies. But, as with the many other Parliamentary vacancies that have arisen since July 2008, no by-elections were called.

Summary of Cases [see Court Watch 14/2012 of 28th July and Bill Watch 43/2011 of 14th October 2011 for more detail]

First High Court decision

In mid-2010 the three former MPs, wanting to seek re-election in their former constituencies, applied to the High Court for an order compelling the President to call by-elections. Despite the President’s opposition, Justice Ndou granted an order in October 2011 directing the President to gazette dates for all three by-elections within fourteen days. The President appealed to the Supreme Court.

Supreme Court decision

In July 2012, the Supreme Court, after hearing full argument, rejected the President’s arguments and dismissed the appeal, but altered the High Court order’s out-of-date 2011 deadline and gave the President until the end of August 2012 to act. Under the altered High Court order the President was “ordered to publish in the Gazette a notice ordering new elections to fill the vacancies as soon as possible but by no later than 30 August 2012”. The Supreme Court said its reasons for its decision would be handed down later, but they have still not been released.

Second High Court decision

At the end of August, just before the Supreme Court’s deadline expired, the President applied to the High Court for an order extending to the 1st October “the period within which to comply with” the deadline set by the Supreme Court. Mr Bhebhe and his fellow would-be MPs consented to this being done, and the extension was granted by Justice Chiweshe on that basis. Because the three agreed to the extension, there was no need for written reasons for judgment to be given.

Third High Court decision

At the end of September the President applied to the High Court for another extension, this time to 31st March 2013. The affidavit justifying the request was made by Justice and Legal Affairs Minister Patrick Chinamasa; it explained in detail that the reason for the application was that the Government was “yet to mobilise the resources with which to conduct the three by-elections”, i.e., a repetition of the reason given in August. This time there was spirited opposition from Mr Bhebhe and his colleagues, but Justice Chiweshe, on 17th October, granted the President’s application and gave the President until 31st March 2013 to gazette dates for by-elections, saying his written judgment would follow. [This is the judgment now available and summarised below.]

Justice Chiweshe’s Judgment [available from veritas@mango.zw]

Jurisdiction

Justice Chiweshe dismissed the argument that he had no jurisdiction to extend a deadline ordered by the Supreme Court. He said that the Supreme Court had merely altered Justice Ndou’s original order without substantially changing its nature; Justice Ndou’s order therefore remained extant as a High Court order, meaning that the High Court accordingly had a discretion “on good cause shown” to extend the time within which it own order should be executed.

President’s explanation for delay accepted as “reasonable” - Having first stated that “it stands to reason that without resources the by-elections cannot be held notwithstanding any order of this court to the contrary”, Justice Chiweshe held that the President had shown good cause for an extension by demonstrating that the Government lacked the necessary resources to conduct by-elections.. No reason had been advanced to doubt the averment in Mr Chinamasa’s affidavit to that effect. The judge likened this to a plea of impossibility of performance, and constituted a reasonable basis for granting an extension.

Objection to the Chinamasa affidavit dismissed - There was an objection to the acceptance of Mr Chinamasa’s affidavit, because he had not produced written authority to testify on behalf of the President. Justice Chiweshe dismissed the objection, ruling that by virtue of his Ministerial position Mr Chinamasa had authority to speak for the President. He also dismissed an objection that the application did not qualify as “urgent”.

Appeal noted - Dissatisfied, Mr Bhebhe, Mr Mguni and Mr Mpofu noted an appeal to the Supreme Court. Their grounds of appeal include the point that as a High Court judge Justice Chiweshe had no power to cannot modify a Supreme Court decision. The hearing of the appeal cannot take place until the first court term of 2013, which starts on 14th January.

Comment: Perhaps the noting of the appeal will spur the Supreme Court to speed up the release of its written judgment giving the reasons for its decision of 12th July. As the Government’s claimed lack of the financial resources needed to conduct by-elections was one of the grounds put to the Supreme Court when it first heard this case, current arguments between the parties’ lawyers about the relevance or otherwise of this excuse are taking place without the parties knowing the Supreme Court’s thinking on it.

Illegal confiscation of property by CIO: The Farai Maguwu Case

Background

Farai Maguwu is the director of the Centre for Research and Development, a Zimbabwean advocacy group well-known for its documentation of human rights abuses in the Marange diamond field. In September 2011 he went to Harare International Airport en route to a Human Rights Defenders conference in Ireland. After checking in for his flight and passing through immigration formalities, he was intercepted by a man and a woman in civilian dress who refused to identify themselves, but later turned out to be CIO agents. Without giving reasons, they searched his person and luggage, and without providing any warrant of seizure or inventory, seized and retained his boarding pass and certain items of property, including laptop, wallet, US $2000 and camera. Forced to abandon his flight, Mr Maguwu reported the incident to the police and made an urgent application to the High Court to recover his property. He was granted a provisional order for the return of his property pending the hearing of an application for a final order to declare the seizure unlawful and to compel the disclosure of the identities of the two CIO agents. The provisional order was directed to, among others, Minister Sekeramayi, the Minister of State for State Security, under whose authority the CIO falls.

The property was not returned and the Minister opposed Mr Maguwu’s application for a final order. He disputed Mr Maguwu’s claims as to what had been confiscated [denying taking of the valuables], claimed that his department had received intelligence information that Mr Maguwu was going to Ireland to “subvert the government of Zimbabwe” and claimed there was nothing legally wrong in any of the actions taken by his agents.

Justice Mathonsi rejects CIO defence

Justice Mathonsi was not impressed by the Minister’s opposition. He rejected the Minister’s evidence that Mr Maguwu’s laptop and other valuables had not been seized, declared the seizure of all his property by the State agents “wrongful, unlawful and unjustified” and ordered its return. A person's property, said the judge, can only be seized under the authority of the law, and neither the Minister nor his lawyer had been able to cite any law giving the CIO agents such authority [full judgment available from veritas@mango.zw].

CIO must comply with the law

Referring to the Minister’s reliance on State security and the fact that the CIO does not operate under any law, Justice Mathonsi said: “Zimbabwe is a democratic country which subscribes to the law ... State security is undeniably paramount, but what is done in pursuit of State security must be justifiable in a democratic society and must conform to the rule of law”. On the facts, the judge said the Minister had “flatly refused to disclose the identity of the State agents who conducted the seizure” and had contented himself with “hedging behind vague allegations of subverting the Government.” He had failed to demonstrate any basis for action under the State’s general powers of seizure in terms of section 49 of the Criminal Procedure and Evidence Act, which requires the existence of reasonable grounds for suspecting the commission of an offence.

Note: One of the disputed issues in the Roadmap to Elections is the MDC-T’s demand for the enactment of an Act of Parliament to regulate the CIO and subject it to Parliamentary oversight. The COPAC draft constitution does not make such an Act essential, but says there must be either an Act or a Presidential or Cabinet directive or order establishing the CIO; and also that the CIO “must be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority”.

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