Court Watch 2/2012 [S v Munyaradzi Gwisai and others: Application for Discharge]

COURT WATCH 2/2012 [February 2012]

State v Munyaradzi Gwisai and Others Discussion of “Arab Spring” Leads to Criminal Trial

This case has been ongoing for almost a year. After many delays caused by the State it has reached the stage at which the prosecution has called all its witnesses and closed its case. The defence lawyer has applied for the discharge of the accused arguing that they have no case to answer . The magistrates decision on this application is due on Wednesday 15th February

Background On Saturday 19th February 2011 a group of about 50 people gathered at the Zimbabwe Labour Centre in Harare to watch and discuss video footage of anti-government protests in Eygpt and Tunisia which had led to changes of government in both countries. Those invited to the meeting included members of the Zimbabwe Congress of Trade Unions (ZCTU), Zimbabwe National Students’ Union (ZINASU) and other unions. An undercover police agent had contrived to be among those present.

Arrest and detention While the discussion was still in progress a large group of police officers and CIO operatives arrived on the scene and arrested and detained 46 people, among them Munyaradzi Gwisai, law lecturer at the University of Zimbabwe [UZ], labour activist, coordinator of the International Socialist Organisation’s Zimbabwe chapter, and former Member of Parliament.

Lawyers denied access Efforts by lawyers to gain access to those detained were fruitless on the Saturday and only partly successful over the next couple of days, but it gradually emerged that police had in mind charges under section 22 of the Criminal Law Code – attempting to overthrow the government by unconstitutional means.

A police spokesperson claimed: “The agenda of the meeting was the revolt in Egypt and Tunisia-what lessons can be learnt for the working class in Zimbabwe and Africa? Videos of the uprising in Egypt and revolts in Tunisia were being shown to the guests who attended as a way to motivate the people to subvert a constitutionally-elected government.”

Mistreatment while in police custody It also emerged that at least 7 of those arrested, apparently regarded as ringleaders and including Munyaradzi Gwisai, had been severely beaten while in custody.

First court appearance – Treason alleged Finally, on Wednesday 23rd February Mr Gwisai and 44 others were taken to the magistrates court to be placed on remand. A few minutes before the hearing prosecutors sprang a surprise by informing the defence lawyers that their clients were to face charges of treason in contravention of section 20 of the Criminal Law Code, with an alternative charge under section 22. The penalty for treason is death or life imprisonment.

This meant that the lawyers could not apply to the magistrate for bail, because only the High Court can grant bail to someone charged with treason. The proceedings were adjourned to the next day to allow the lawyers to take fresh instructions from their clients following this unexpected development. The accused persons were remanded in custody and some were held at Chikurubi Maximum Security Prison instead of at the remand prison.

Defence application for discharge and evidence of torture When the proceedings were resumed on 24th February defence lawyer Alec Muchadehama asked the magistrate to refuse the State’s application for the accused to be further remanded. He argued that the facts outlined to the court by the State did not constitute an offence. He also outlined several complaints against the police:

• unlawful arrest – his clients were not advised as to why they were being arrested

• overlong detention in filthy and stinking police cells

• last-minute introduction of treason charges – police had not recorded warned and cautioned statements on allegations of treason

• assaults and torture while in police custody.

Mr Gwisai went into the witness box and gave evidence of the torture session to which he and other detainees had been subjected. When proceedings continued on 1st March the magistrate ordered prison officers to allow the accused to be attended to by doctors of their own choice.

39 accused freed On 7th March the magistrate freed 39 of the accused, ruling that there was no reasonable suspicion that they had committed the offences alleged by the State. But he decided that Mr Gwisai and five others – Antoneta Choto, Tatenda Mombeyarara, Edson Chakuma, Hopewell Gumbo and Welcome Zimuto – had a case to answer and remanded them in custody until 21st March.

Bail Granted Meanwhile a bail application had been lodged in the High Court and on 16th March Justice Kudya granted bail to all six accused. Bail was set at $2000 and the accused were ordered to report to CID law and order section every Monday, Wednesday and Friday and not to interfere with State witnesses. Tellingly, the judge observed that the State case appeared weak, there being little in the facts presented to him to suggest a plot to topple the President. It took two days to raise the $12 000 bail money needed, so it was not until 18th March that Mr Gwisai and his five co-accused were released from prison.

Treason charge dropped On the 20th April, at a routine remand hearing, the prosecutor told the court that the accused would be tried before a regional magistrate on July 18th. As a regional magistrate does not have jurisdiction to try a case of treason, this announcement signified that the State would not be pressing the treason charges.

Delay in starting trial The trial did not start on the 18th July because the assigned magistrate recused himself, citing acquaintance with one of the accused. This was probably a reference to Mr Gwisai who, as a UZ law lecturer of long standing, must be known to many magistrates who qualified at that institution. The prosecutor did, however, inform the court that the accused now faced charges of inciting public violence, alternatively conspiring to commit public violence, in contravention of section 22 of the Criminal Law Code. Further delays followed, as finding a presiding magistrate continued to pose difficulties, with at least three other magistrates recusing themselves on the basis of knowing one of the accused.

Trial starts – 14th September Proceedings finally started on the 14th September. Presiding magistrate Kudakwashe Jarabini dismissed a preliminary defence application for the quashing of the charges on the grounds of inadequacies in the outline of the State case. All the accused then pleaded not guilty and the first State witness was called, a person who had been a guest at the meeting on 19th February and was among those originally arrested. He disowned a statement to the police incriminating the accused, telling the court that he had only signed the statement after being beaten while in police custody.

When the trial resumed on the 24th September the prosecution called its key witness – on whose testimony the State case will probably stand or fall. He identified himself on oath as Detective Sergeant Shoko, a member of the ZRP. He said he had managed to be present undercover at the 19th February meeting, and told the court that his infiltration into the meeting had been planned in advance.

He was still giving evidence when the case was adjourned. On 24th October Shoko continued his evidence and the State showed the court video footage of the Egyptian revolution. Shoko testified that on the day they were watching the video Mr Gwisai and the other activists were plotting to launch a revolt against President Mugabe. The case was then adjourned for the defence to cross-examine Shoko.

Key State witness challenged On 1st November defending lawyer Alec Muchadehama started his cross-examination of Shoko, mounting a formidable attack on his credibility. He queried Shoko’s true identity and challenged his claim to be a police officer, putting it to him that he is actually a member of the CIO, not the police, that his real name is Rodwell Chitiyo, and that his claimed national ID and police identity card numbers in the name of Shoko are fake.

When the court adjourned Shoko was still under intensive cross-examination. That cross-examination continued when, after unscheduled further adjournments, the trial eventually resumed on 12th December, and was not complete when the court adjourned until 14th December, with Shoko leaving court under orders from the magistrate to produce his ID documents at the next hearing.

Further delays Continuation of the trial thereafter was held up by adjournments caused by the magistrate being unavailable.

State case at last completed The trial was eventually resumed on Monday 30th January and continued until 1st February. The crucial State witness Shoko failed to produce the identity documents previously demanded of him, and Mr Muchadehama concluded his cross-examination. The prosecutor called three further witnesses, none of whom gave significant evidence. He then closed the State case.

Defence application for discharge of all accused Mr Muchadehama immediately gave notice to the magistrate of the defence application for the discharge of all the accused on the basis that the State had failed to produce sufficient evidence to require putting the accused to their defence. The magistrate ordered defence and prosecution to submit their written arguments for and against discharge by 10th February and said he would deliver his decision on the application for discharge on 15th February.

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