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v MDC-T Chief Elections Agent Morgen Komichi's bail applications
in "lost" special ballot paper case - Court Watch 15/2013
September 24, 2013
Elections Agent Morgen Komichi's Bail Applications in "Lost"
Special Ballot Paper Case
State v MDC-T Chief Elections Agent Morgen Komichi
“Lost” Special Ballot paper case
This case is
a spin-off from the special voting debacle [see Bill
Watch 31/2013 of 25th July]
outlines pre-trial developments in the case and the unsuccessful
bail applications made by Mr Komichi. The course of the trial, which
is ongoing, will be covered in later Court Watch bulletins.
voting” The casting of early “special votes” by
members of the uniformed forces and officials of the Zimbabwe Election
Commission [ZEC], whose duties would entail their being out of their
constituencies on the 31st
July polling day and therefore unable to cast their votes on
that day, was provided for in the newly amendment Electoral
Act. The 14th and 15th July were set aside for this exercise
and ZEC had prior to these dates authorized 63 268 individuals to
cast special votes. ZEC had very little time to complete the necessary
arrangements, with the result that over 27 000 special voters were
unable to vote because their ballot papers did not reach the designated
special voting centres. [See Bill Watch 31/2013 of 25th July]
for special voting - If authorized by ZEC to cast a special
vote, a voter had go to the special voting centre specified by ZEC.
At the voting centre ZEC officials should have had waiting for the
voter a tamper-proof envelope bearing the voter’s name and
containing another brown envelope, inscribed with the voter’s
constituency and ward only, and the blank ballot papers to be used
by the voter. Before being handed to the voter, each ballot paper
would be stamped by a ZEC official with a secret mark, to indicate
its authenticity. The voter would then take his or her ballot papers
and the brown envelope to the voting compartment, mark the ballot
papers in the normal way, place them in the envelope and seal it
before depositing it in the ballot box. At the conclusion of special
voting ZEC would sort the contents of the ballot boxes, without
opening the envelopes, and ensure the secure distribution of every
envelope, still unopened, to the appropriate ward in the appropriate
constituency. The envelope would eventually be opened at ward level
on 31st July after the close of polling, and the ballot papers inside
it would be included in the count of votes in the ward return.
of special voting - On Tuesday 23rd July, ZEC lodged an
urgent application with the Constitutional Court for authority to
allow the disappointed special voters to cast their votes on 31st
July, despite an Electoral Act provision expressly forbidding this.
Chief Elections Agent, Mr Morgen Komichi, Deputy National Chairperson
of the party, and at that time a Senator, was responsible for liaising
with ZEC on behalf of the party during the election period. On 25th
July, a few days before the 31st July polling day, Mr Komichi called
ZEC’s Deputy Chief Elections officer Mr Utoile Silaigwana
and asked him to arrange a meeting between Mr Komichi and ZEC Chairperson
Justice Rita Makarau. Mr Silaigwana did so and on the afternoon
of 25th July, Mr Komichi met Justice Makarau and ZEC Commissioners
Feltoe and Gambe; also present were ZEC’s Chief Elections
Officer Sekeramayi, two of his deputies and other ZEC officials
including ZEC’s chief law officer.
At the meeting
Mr Komichi produced a tamper-proof envelope inscribed with the name
of ZRP Constable Chiginya and Mount Pleasant special voting centre.
It contained a second envelope, inscribed with the voter’s
constituency and ward, inside which were three special vote ballot
papers marked in favour of MDC-T candidates in the Presidential,
Parliamentary and council elections. There was a discussion and
the envelope and its contents were passed round the table and thereafter
retained by Justice Makarau, who said it was confiscated and might
be used as evidence in a court of law.
Court, despite opposition from MDC-T, granted ZEC’s application
to extend special voting on Friday 26th July
Mr Komichi was
arrested at his home in the early hours of the morning on Sunday
28th July and taken to Harare Central Police Station. Mr Komichi
says that he was not told that he was an accused person. In the
absence of his lawyer, he signed a lengthy affidavit in the belief
that he was to be a witness in the case. Only when he was later
made to sign a warned and cautioned statement, again in the absence
of his lawyer, did Mr Komichi realize that he was in fact an accused
person. He remained in custody until the next day. [Comment: his
lawyer later complained that this was an improper procedure.]
Mr Komichi was
taken to the magistrate’s court on Monday 29th July and remanded
on charges of fraud [section 136 of the Criminal
Law Code] and unlawfully interfering with a ballot box or packet
of ballot papers in use for the purposes of the election [section
85 (1) (e) of the Electoral Act]. He was remanded in custody, having
been denied bail [see below for bail proceedings].
A ZEC press
statement was published in the newspapers that same Monday, headed
”Lost Special Vote Ballot Paper: Complaint against Mr Morgen
Komichi of MDC-T”. In it ZEC explained that after its meeting
with Mr Komichi it investigated the matter and concluded that his
story was “not credible”, causing ZEC to have “severe
reservations regarding the details he provided to the Commission”.
ZEC had therefore handed over the matter to the police for investigation.
The statement went into detail about the meeting, including that
Mr Komichi had volunteered that the tamper-proof envelope was sealed
when handed to him by a person he declined to name who had informed
him that the envelope had been picked up from a dustbin at the Harare
International Conference Centre where the special votes were being
processed. The statement went on to say Mr Komichi had opened it
“because he was curious”, and also opened the second
envelope inside it which contained the three ballot papers. They
also said their internal investigations had revealed that a special
vote had been authorized to the person whose name was recorded on
the outer envelope. The voter had told ZEC’s investigator
that when he went to vote he was turned away because his envelope
could not be located. ZEC registered its concern that Mr Komichi
had taken a day to bring the matter to its attention and only did
so after attaching copies of the ballot paper in his opposition
to ZEC’s application to the Constitutional Court. It also
said it was clear that the ballots had not been marked by the voter.
[Comment: a press statement of this one-sided nature was unfortunate
in the event of Mr Komichi being brought to trial.]
application in the magistrate’s court
29th July -
At his first court appearance on 29th July Mr Komichi’s lawyer
Andrew Makoni applied for bail, submitting that he was a suitable
candidate for bail and, and as the MDC-T Chief Elections Agent would
be needed by his party during the elections. The State opposed the
granting of bail, arguing that he was a flight risk and facing a
serious offence that had the potential to discredit ZEC and the
entire electoral process. The investigating officer told the court
that releasing Mr Komichi on bail could compromise police investigations,
still in their initial stages.
30th July -
Magistrate Anita Tshuma dismissed the bail application and remanded
Mr Komichi in custody. She accepted that investigations were still
in their early stages and that if released Mr Komichi was likely
to interfere with witnesses. She also held that it was important
to maintain a peaceful environment pending the elections and that
Mr Komichi’s release “could cause commotion and compromise
the peace”. Mr Komichi was committed to Chikurubi Maximum
to the High Court against magistrate’s bail decision
31st July -
Mr Komichi’s lawyers filed an appeal in the High Court against
the magistrate’s refusal of bail. The matter was set down
to be heard on 6th August but was postponed to 7th August because
the State only filed their opposing papers on the morning of the
8th August -
After considering both State and defence submissions, Justice Hlekani
Mwayera upheld the magistrate’s decision and dismissed Mr
Komichi’s appeal. There could be no further appeal to the
Supreme Court, because Mr Komichi’s alleged offences fall
outside the short list of cases in which section 121(8) of the Criminal
Procedure and Evidence Act permits a second appeal.
date set and fresh bail application made
- At a routine remand hearing the magistrate set Mr Komichi’s
trial down to commence on 27th August.
- Mr Komichi’s lawyers made a fresh application for bail in
the magistrate’s court citing changed circumstances. According
to section 116(1)(c)(ii) of the Criminal Procedure and Evidence
Act even if bail has been refused by a court, a further application
for bail may be made if it is based on new or different facts from
the previous application. The lawyers argued that the setting of
a trial date was an indication that the police had had sufficient
time since the last application to investigate the case, and that,
as the elections were over; the results announced and the SADC Observer
Mission preliminary statement
had been released, Mr Komichi’s release could not affect the
electoral process in any way. The State opposed the application,
claiming that issues around the election had not yet been finalised
because the validity of the Presidential election was being contested
in the Constitutional Court [at this time Mr Tsvangirai’s
notice withdrawing his election petition was only filed in the Constitutional
Court later that day].
- The magistrate dismissed the bail application, ruling that because
the validity of the Presidential election was still before the courts,
Mr Komichi could not be released. [Comment: Although Mr Tsvangirai's
withdrawal was filed on 16th August, the Constitutional Court had
announced there would be a hearing, as stipulated by new Constitution,
on 20th August; and declared President Mugabe duly elected on Tuesday
- Defence lawyer Alec Muchadehama made another application for bail,
citing changed circumstances: the election was now over and the
evidence led so far [the trial started on 27th August] had disproved
the State’s claim that the person named by Mr Komichi as the
source of the envelope does not exist.
- The magistrate dismissed a renewed bail application made on 20th
September. The prosecutor had opposed the granting of bail. The
magistrate said that, as the prosecution case is strong and the
charges are serious, Mr Komichi is a flight risk.
of Trial: 27th August
On 27th August
Mr Komichi’s trial began in the Harare Magistrate’s
Court, presided over by magistrate Tendai Mahwe with Mr Alec Muchadehama
of Mbidzo, Muchadehama and Makoni Legal Practitioners appearing
for Mr Komichi, and Mr Michael Mugabe, assisted by Mr Michael Reza
and Mr Michael Murombedzi, appearing for the prosecution.
Mr Komichi entered
pleas of not guilty to both charges put to him:
1. Fraud, in
contravention of section 136 of the Criminal Law Code, which carries
a penalty of up to thirty-five years imprisonment or a fine not
exceeding $5000 or both a fine and imprisonment. The allegation
is that Mr Komichi misrepresented to ZEC that he had picked up,
from a bin at the Harare International Conference Centre, a grey
tamper-proof plastic envelope containing three ballot papers for
the Presidential, National Assembly and council elections purporting
that Constable Mugove Chiginya, a member of the Zimbabwe Republic
Police, had cast his vote in favour of MDC-T candidates during the
special voting exercise at Mount Pleasant polling station.
with ballot papers, in contravention of section 85(1)(e) of the
Electoral Act, which carries a penalty of imprisonment for up to
three years, without the option of a fine.
said he would be calling twelve witnesses.
objected to his client being brought to court in leg irons and the
magistrate ordered their removal.
The trial is
proceeding. Its course will be covered in later Court Watch bulletins.
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