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The State v Human Rights Defender Beatrice Mtetwa - Court Watch 4/2013
Veritas
April 29, 2013

The State v Human Rights Defender Beatrice Mtetwa

Mrs Mtetwa’s trial is listed for Monday 27th May to Friday 31st May, at Harare Magistrates Court.

Background

On Sunday 17th March, police officers arrested and detained human rights lawyer Beatrice Mtetwa while she was attending to her client Tabani Mpofu, whose home was being raided by police. [Mr Mpofu, Felix Matsinde, Mehluli Tshuma and Warship Dumba were all arrested on the same date: Mr Mpofu at his home at the time of the search, Mr Matsinde at Avondale shopping centre, Mr Tshuma at the Law and Order section at Harare Central police station where he had been asked to report, and Mr Dumba at his home. The four, who had been working in the field of research at the Prime Minister’s communication office, were charged with “impersonating a police officer” for allegedly collating dockets on large-scale corruption by top officials.]

In the events leading up to her arrest, Mrs Mtetwa is said to have demanded that the police produce a valid search warrant and an inventory for materials that had been removed from Mr Mpofu’s home, and to have informed the police that what they were doing was “"unlawful, unconstitutional, illegal and undemocratic.” [Comment: The allegations made by the prosecution about Mrs Mtetwa’s conduct have been amended several times – see most recent appearance in magistrates court, below.] Her mobile telephone was then confiscated; she was handcuffed; put in the back of a truck; and taken to the MDC office at 14 Bath Road where a further search was conducted. She was then taken to the Law and Order section at Harare Central police station and charged with “defeating and/ or obstructing the course of justice” in contravention of section 184(1)(g) of the Criminal Law (Codification and Reform) Act, by hindering police in the execution of their duty. She was taken to cells at Rhodesville police station at 17:30.

Initial High Court Application and Response

Zimbabwe Lawyers for Human Rights [ZLHR] submitted an urgent chamber application in the High Court in response to Mrs Mtetwa’s arrest later on 17th March. At 01:51 hours on Monday 18th March, High Court Judge Charles Hungwe, at his home, ordered Mrs Mtetwa’s immediate release from police custody on the basis that the factual allegations in the charge that had been put to her did not reveal a criminal offence, and there was therefore no legal basis for her arrest. The order was addressed not only to several named officers but also to generally to any police officer holding Mrs Mtetwa in custody. [Comment: Justice Hungwe has since been subjected to extensive professional and personal attacks in the State-controlled and other partisan media. Chief Justice Godfrey Chidyausiku has also reportedly written to the President in terms of section 87(3) of the Constitution which provides: “If, in the case of a judge of the ... High Court ... the Chief Justice advises the President that the question of removal from office of the judge concerned ought to be investigated, the President shall appoint a tribunal to inquire into the matter.” If, as he now must, the President appoints a tribunal, Justice Hungwe would be automatically suspended from his duties until the President, on the recommendation of the tribunal or the Judicial Service Commission, revokes the suspension.]

Mrs Mtetwa’s legal representatives served Justice Hungwe’s order on officers at Rhodesville police station at around 02:30 on 18th March, but the officers refused to comply with the order.

On Monday 2nd March, Mrs Mtetwa’s lawyers lodged a further application in the High Court complaining that the police’s failure to enforce Justice Hungwe’s order was in contempt of court. On the same date, however, Mrs Mtetwa was informed that she was to be taken to the magistrates court the following day and so her lawyers withdrew this application. In spite of the withdrawal of the contempt of court application, Justice Hlatshwayo later the same day [Monday 2nd March] dealt with and dismissed the application in the absence of Mrs Mtetwa’s lawyers who had not been informed that it was going ahead in spite of their notice of withdrawal. [Comment: Justice Hlatshwayo’s decision to dismiss the contempt of court application against the police officers involved did not expressly or impliedly revoke the order for Mrs Mtetwa’s release. There was no jurisdictional basis upon which Justice Hlatshwayo could have revoked the order.]

Magistrates Court Proceedings

First Appearance

On Tuesday 19th March, police brought Mrs Mtetwa before Harare Provincial Magistrate, Marehwanazvo Gofa, at Harare Magistrates Court seeking her remand in custody on the charge of contravening section 184(1)(g) of the Criminal Law (Codification and Reform) – “defeating and/ or obstructing the course of justice” by hindering police in the execution of their duties. The maximum penalty on conviction is a fine of $400 or 2 years’ imprisonment or both.

Legality of the hearing in the magistrates court

Advocate Thabani Mpofu [no relation to Mrs Mtetwa’s client Tabani Mpofu], briefed by Harrison Nkomo and Dzimbabwe Chimbga, argued that the remand application could not be heard in the magistrates court given that Mrs Mtetwa was already entitled to release in accordance with Judge Hungwe’s still extant High Court order; the State could not request the Magistrates Court to order remand in custody in direct contravention of the order of a superior court for her release from custody on the same charge.

Mistreatment in custody and legality of ongoing detention

Mrs Mtetwa’s lawyers also raised a number of complaints with regard to her detention and treatment in police custody. They argued that the circumstances of arrest were unlawful as she was arrested while carrying out her duties as a legal representative. During her arrest she was handcuffed, which was not necessary as she posed no threat to the police or the security services. Mrs Mtetwa’s telephone, containing confidential lawyer-client communication, was also confiscated in violation of her privacy and that of her clients. She was denied access to her relatives, who had travelled from outside the country to see her. On Monday 18th March, two male police officers entered Mrs Mtetwa’s detention cell at Rhodesville Police Station in the dead of the night and attempted to remove some blankets that covered her, causing Mrs Mtetwa and a fellow inmate to fear they would be raped. Mrs Mtetwa had also not been allowed to wash since her arrest on Sunday 17th March. Finally, her continued detention was unlawful given the High Court Order for her immediate release.

Magistrate Gofa ruled that the matter was properly before the magistrates court, as the High Court order related to her detention in police custody only, and the proceedings before her related to Mrs Mtetwa’s placement on remand. She proceeded to hear submissions in relation to suitability for bail.

Bail

Mrs Mtetwa’s lawyers then put forward extensive arguments in support of bail: Mrs Mtetwa’s arrest was unlawful; there was no basis for the case against her; she has no criminal record; she is a lawyer of excellent repute with 31 years’ experience who is extremely well-established in Zimbabwe; and she is therefore clearly not someone who would abscond nor commit further offences or interfere with investigations if released.

Following the arguments submitted by Mrs Mtetwa’s lawyers in support of bail, prosecutor Michael Reza requested an adjournment till the following day to enable him to file a full and reasoned response opposing bail. The magistrate granted the adjournment to allow the State further time to file its response and remanded Mrs Mtetwa in custody until the following day, Wednesday 20th March. [Comment: The effect of the decision to remand Mrs Mtetwa in custody was to overrule the High Court order to release her.]

Second Appearance

On Wednesday 20th March, the State put forward their arguments as to why Mrs Mtetwa should not be released on bail. It was argued that she was facing a very serious offence; that the police should not be hindered in the execution of their duties; and that her release would set a dangerous precedent: “anarchy would prevail”. There was a high risk she would abscond given the serious nature of the offence and the fact that she holds a foreign passport. It was also argued she would also be likely to hinder police investigations if released and would further interfere with the course of justice, given that during the commotion of her arrest three computers are alleged to have disappeared. [Comment: The implication is that Mrs Mtetwa arranged and assisted in the alleged removal of the computers, but the State’s case was not clear on how she could have done so at the time of arrest. The prosecution also did not clarify the nature of investigations outstanding. The Police Human Rights Pocket book emphasises that police should investigate before arresting, not arrest before investigating; investigative detention is not permitted.]

After adjourning the matter until mid-afternoon for judgment, Magistrate Gofa dismissed Mrs Mtetwa’s bail application and remanded her in custody to 3rd April on the basis that there was a risk she would “continue shouting” and hinder police investigations if released on bail.

High Court Appeal Proceedings

On Thursday 21st March, Mrs Mtetwa’s lawyers lodged an appeal at the High Court against the magistrate’s decision refusing bail. The High Court listed the matter to be heard before Justice Joseph Musakwa on Friday 22nd March.

First Appearance

On Friday 22nd March 2012 the State’s representative requested an adjournment of the appeal proceedings to allow time to submit their response: they had not had sufficient time to review the complete transcript of the proceedings in the magistrates court.

Justice Musakwa agreed to the adjournment and set down the appeal hearing for Monday 25th March to allow the State additional time to file their response.

Second Appearance

On Monday 25th March, Justice Musakwa allowed Mrs Mtetwa’s appeal, setting aside the magistrate’s decision and ordering her release. He held that the police had not shed sufficient light on the nature and scope of investigations that remained outstanding; and the magistrate should not have restricted the liberty of a legal practitioner of such repute. The conditions of Mrs Mtetwa’s release were to provide $500 recognizance; to reside at her given address; and not to interfere with witnesses.

Further Proceedings in the Magistrates Court

Mrs Mtetwa appeared at Harare Magistrates Court on Wednesday 3rd April 2013 before Magistrate Don Ndirowei for a routine remand hearing. The matter was postponed until 8th April 2013 to allow her legal representatives, Advocate Thabani Mpofu and Harrison Nkomo, to file an application challenging her placement on remand, and for the State to furnish Mrs Mtetwa with a trial date.

On 5th April 2013, the prosecution served Mrs Mtetwa’s lawyers with papers setting out their case against her. The prosecution maintained the charge of “defeating and/ or obstructing the course of justice” but raised a number of new allegations that had not been included in the original State papers.

On Monday 8th April Mrs Mtetwa appeared again in the magistrates court, with the case now being prosecuted by Tawanda Zvekare, Acting Director of Public Prosecutions in the Attorney General’s Office, assisted by Michael Mugabe, a chief law officer and was remanded, still on bail, for trial commencing on 27th May.

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