Supreme court reserves judgment in Tomana’s bid to overturn Muchadehama’s acquittal

Supreme court reserves judgment in Tomana’s bid to overturn Muchadehama’s acquittal as magistrate dismisses Gwisai’s application for discharge


Deputy Chief Justice Luke Malaba on Wednesday 15 February 2012 reserved judgment in a case in which Attorney General (AG) Johannes Tomanahad requested the Supreme Court toallow a late noting of an appeal by hisoffice against the acquittal of crusading human rights lawyer, Alec Muchadehama and Constance Gambara, a clerk to High Court Judge Justice Chinembiri Bhunu on charges of contempt of court.

In his application lodged in the Supreme Court Tomana argues that he still has chances of getting the acquittal of Muchadehama and Gambara overturned. The two, who were charged with contravening Section 182 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) were acquitted in the Magistrates Court in December 2009.

Tomana accuses Muchadehama and Gambara of facilitating the improper release of Andrison Manyere, a freelance journalist and senior Movement for Democratic Change (MDC) officials Gandhi Mudzingwa and Chris Dhlamini. The three men were abducted and tortured by State security agents during the period they were under State sponsored enforced disappearance in late 2008.

The three men were later admitted to bail but the AG argued they were released when the bail granted was being appealed against. High Court Judge Justice Joseph Musakwa in 2010 dismissed the AG’s chamber application for leave to appeal against the Magistrates Court’s acquittal of Muchadehama and Gambara.

The AG failed to appeal against Justice Musakwa’s ruling on time, and has now filed an application for late noting of the appeal.

Roderick Tokwe, a prosecutor handling the case at the time Justice Musakwa dismissed the AG’s application for leave to appeal against Magistrates Court’s acquittal of Muchadehama and Gambara stated in the Supreme Court application that he failed to file the appeal on time partly because he was fighting a messy divorce.

On Wednesday, Muchadehama’s lawyer Beatrice Mtetwa, a board member of Zimbabwe Lawyers for Human Rights raised a preliminary point when the hearing commenced in Justice Malaba’s chambers on whether Tomana can appeal directly to the Supreme Court without first approaching and seeking leave from the High Court.

Justice Malaba restricted Mtetwa and Edmore Nyazamba, who appeared on behalf of Tomana to arguments on the preliminary point raised by Muchadehama’s lawyer.

Mtetwa submitted that the actions by Tomana were yet another step by the AG to hound the prominent human rights lawyer through abuse of procedure by filing an appeal through a non-existent procedure and way out of time.

Justice Malaba remarked that the State clearly has a mountain to climb as it sought the Supreme Court to condone its conduct and reserved judgment.

Meanwhile, Harare Magistrate Kudakwashe Jarabini on Wednesday 15 February 2012 dismissed an application for the discharge of International Socialist Organisation leader and University of Zimbabwe law lecturer Munyaradzi Gwisai and five social justice and human rights activists, who were on trial on charges of conspiring to commit public violence filed by their lawyer, Muchadehama.

Muchadehama had applied for discharge at the close of the State case on the basis that the State had failed to produce sufficient evidence to require putting the accused persons to their defence but Magistrate Jarabini ruled that the matter should proceed to the defence case as the State had made up a prima facie case against the activists tending to prove the commission of an offence. The Magistrate postponed the case to 27 February 2012.

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