Court Watch 2/2011

Cases in the Supreme Court

The cases Court Watch will cover are selected constitutional cases, appeals on human rights issues, cases involving political activists and other cases of general public interest. It will not attempt to cover the court’s ordinary appeal work involving labour disputes, marital disputes, or commercial and other civil cases of limited general interest.

Former Attorney-General Gula-Ndebele’s Appeal in Supreme Court Tuesday 29th November

In May 2008 then Attorney-General Sobusa Gula-Ndebele was removed from office by President Mugabe following the decision of a special tribunal appointed in terms of section 110 of the Constitution finding him guilty of misbehaviour in discharging the functions of his office. Mr Gulu-Ndebele then took legal action against the chairperson of the tribunal, High Court Judge Chinembiri Bhunu, asking the High Court to set aside the tribunal’s recommendation on the grounds of gross unreasonableness. Mrs Justice Makarau dismissed the application on procedural grounds, ruling that Mr Gulu-Ndebele should have cited the President as a defendant; she did not rule on the merits of the complaint against the tribunal. Mr Gulu-Ndebele appealed to the Supreme Court against this decision, but when the appeal came up for hearing the other side objected that his notice of appeal was invalid and the appeal accordingly a nullity. After hearing legal argument, the Supreme Court in September 2010 overruled the objection and suggested Mr Gula-Ndebele should amend his notice of appeal. The appeal will go ahead on 29th November, when Mr Gula-Ndebele will request the Supreme Court to overrule Mrs Justice Makarau’s decision and send his case back to the High Court for a hearing on the merits of his original application.

Constitutional Cases Awaiting Hearing

In Court Watch 1/2011 we mentioned the Constitution’s provision for the referral to the Supreme Court of possible infringements of the Declaration of Rights that arise during proceedings in lower courts – such as the magistrates court and the High Court. The constitutional section concerned is section 24(2), which provides that “if in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

In this bulletin we describe some of the cases that have been referred to the Supreme Court in terms of section 24(2). In all these cases hearings before the Supreme Court are still to take place. As the Supreme Court’s current sittings end on 2nd December none of these cases will now be heard until next year; the court’s sittings will resume in January next year.

A Constitutional Case on Repression of Artistic Freedom

Owen Maseko Challenges Prosecution over Paintings at Bulawayo Art Gallery

In March 2010 police in Bulawayo shut down an exhibition of paintings by internationally-renowned Bulawayo artist Owen Maseko. The paintings depicted torture and massacres that took place in the 1980s during the period of civil unrest called Gukurahundi. Mr Maseko himself was arrested and taken to court accused of undermining the authority of or insulting the President and causing offence to persons of a particular race or religion, contrary to sections 33 and 42 of the Criminal Law Code. He spent four days in custody before bail was granted and he was placed on remand. Later, the State added another charge: contravening section 31 of the Criminal Law Code by publishing or communicating falsehoods prejudicial to the State. The police action against Mr Maseko came only a day after a photographic exhibition at Harare’s Delta Gallery, organized by the Zimbabwe Human Rights Association, was abandoned after police tried to confiscate the photographs on show, in defiance of a court order.

In September 2010 Mr Maseko’s lawyers made a section 24(2) application to Bulawayo magistrate Ntombizodwa Mazhandu, arguing that the prosecution of Mr Maseko infringed his rights under sections 18, 19 and 20 of the Constitution [section 18 covers protection of the law, section 19 freedom of conscience and section 20 freedom of expression]. The magistrate granted the application, holding that it was neither frivolous nor vexatious.

The record of proceedings has been received by the Supreme Court. What remains to be done before the case can be set down for hearing is for the registrar of the Supreme Court to call on the parties for their heads of argument. [A later Court Watch will examine why it seems to take an inordinately long time for cases appealed or referred to the Supreme Court to come up for hearing.]

Two Constitutional Cases on Personal Liberty

State’s Right to Block Accused Person’s Release on Bail under section 121(3) of Criminal Procedure and Evidence Act Challenged

There have been many complaints over the last few years that the State has improperly used section 121(3) of the Criminal Procedure and Evidence Act to thwart the release of accused persons on bail when a magistrate or judge grants bail. Section 121(3) provides that a decision by a judge or magistrate to admit an accused person to bail is suspended if, immediately afterwards, the judge or magistrate is informed that the Attorney-General or his/her representative “wishes to appeal” against the decision. The accused person then remains in custody while the Attorney-General or representative decides whether or not to pursue the appeal, a decision that must be made within 7 days. If before the 7 days is up, an appeal is lodged, the accused person continues in custody until the appeal is decided. If no appeal is lodged, the accused person must be released on bail on the expiry of the 7 days, or earlier if the Attorney-General or his/her representative notifies the magistrate or judge that the appeal will not be pursued. Lawyers for some of the provision’s many victims have had the constitutionality of section 121(3) referred to the Supreme Court for a final ruling.

MDC-T Director-General Toendepi Shonhe was an early victim, in June 2009. He appeared before a magistrate charged with perjury and was granted bail. The prosecutor invoked section 121(3), so Mr Shonhe was kept in remand prison while the State set about appealing. Mr Shonhe’s lawyer promptly applied to the magistrate for the constitutionality of section 121(3) to be referred to the Supreme Court and the application was granted by the magistrate. But this did not mean freedom for Mr Shonhe; it was not until eight days after section 121(3) had been invoked that a High Court judge dismissed the State’s appeal against the grant of bail and Mr Shonhe was released. The Supreme Court is yet to deal with the constitutional point referred to it more than two years ago.

MDC-T MP Douglas Mwonzora and 22 MDC-T co-accused were arrested in February this year on charges of public violence allegedly committed following an MDC-T meeting in Nyanga. When the Nyanga magistrate granted them bail a few days later, the State invoked section 121(3), resulting in all 23 remaining in prison for 25 days until their release following the dismissal of the State’s appeal by a High Court judge. In this case, too, the magistrate acceded to a defence request to refer the constitutionality of section 121(3) to the Supreme Court.

Constitutional Cases on State’s Abduction, Unlawful Imprisonment and Torture of Accused Persons

Should the Courts Stop the Prosecution of Victims?

In September 2009 the Supreme Court granted Jestina Mukoko a permanent stay of prosecution on serious charges on which she had been indicted to stand trial in the High Court [recruiting people to undergo training to commit acts of insurgency, sabotage, etc]. A magistrate had referred Mrs Mukoko’s case to the Supreme Court in terms of section 24(2) of the Constitution, the point for decision being whether the abduction, unlawful imprisonment and torture she said she had suffered at the hands of State agents over a period of several weeks before being taken to court for prosecution was a breach of her constitutional rights entitling her to a permanent stay of prosecution on the charges laid against her. On 26th September 2009 the Supreme Court issued an order granting the stay of prosecution and said its reasons for judgment would be handed down later. More than two years later those reasons have still not been released.

Meanwhile the cases of Kisimusi Dhlamini and other persons allegedly abducted, and subjected to treatment similar to Mrs Mukoko’s, before being indicted for trial on similar charges, have also been referred to the Supreme Court. In these cases, too, the Supreme Court is asked to decide on requests for stays of prosecution. [The order in the Mukoko case did not halt their prosecution because it referred only to Mrs Mukoko.] The scheduled hearing of their cases on 15th September was delayed by the State’s preliminary objections on procedural grounds; and, ironically, one of those objections was that the hearing could not take place until the Supreme Court had delivered its reasons for judgment in Mrs Mukoko’s case. The court has not yet given its ruling on the State’s preliminary objections.

Two Constitutional Cases on Press Freedom

The State vs The Print Media: Statutory Offence of Criminal Defamation Challenged

With increasing frequency the police have responded to stories in the Press by charging editors and journalists with the offence of criminal defamation contrary to section 96 of the Criminal Law Code and/or publishing false statements prejudicial to the State in contravention of section 31 of the Code.

State press: Not even the State press have been immune. In March 2009 the then editor of The Chronicle and a reporter were brought before the courts charged with criminal defamation over a story implicating senior police officers in alleged corruption at the Grain Marketing Board. The constitutionality of section 96 of the Criminal Law Code was later referred to the Supreme Court by a Bulawayo magistrate in response to a defence application.

Independent press: When an independent newspaper, The Standard, ran a story about the postponement of police promotion examinations, the paper’s editor and a reporter were taken to court in November 2010 and charged with contravening both these provisions. On 2nd August this year a Harare magistrate granted a defence request for the constitutionality of both sections to be referred to the Supreme Court. The defence said it would ask the Supreme Court to strike down the provisions for inconsistency with section 20 of the Declaration of Rights guaranteeing freedom of expression.

[Note: On 24th November 2010 the African Commission on Human and Peoples’ Rights passed a resolution calling on States Parties to the African Charter on Human and Peoples’ Rights to “repeal criminal defamation laws or insult laws which impede freedom of speech”.]

Post published in: Politics

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