Court watch

Update on (1) Glen View 29 Murder Trial; (2) State v Gwisai and Others

State v Solomon Madzore and 28 Others: the Glen View 29 Murder Trial

Adjournment to 15th March

Although due to start on Monday 12th March, the trial did not in fact commence. Instead the court heard a defence application for the trial to be postponed for three weeks, to 2nd April. So the charges have not been formally put to the accused and they have not yet pleaded. The main charge is murder and there is an alternative charge of public violence. The offence of murder carries the death penalty. The maximum penalty for public violence is a fine of $2 000 or imprisonment for 10 years or both. [See Court Watch of 4/2012 of 9th March for background.]

Why the trial is in the High Court As the offence of murder is punishable by the death penalty, and as only the High Court has the power to impose the death penalty, all murder trials have to be heard in the High Court.

Composition of the trial court The trial court consists of the presiding judge, Justice Chinembiri Bhunu, and two assessors. All questions of law and admissibility of evidence arising in a criminal trial are decided by the judge alone, but questions of fact are decided by a majority of the three members of the bench. This means that when it comes to reaching a verdict the assessors can actually overrule the judge on questions of fact – this does not happen often, but is not unknown. If a trial ends with a conviction, the judge may consult with the assessors when it comes to imposing sentence, but it is the judge alone who makes the final decision. [Zimbabwe does not have trial by jury. Trial by jury in this country was abolished before Independence after having fallen into disuse in the limited range of criminal cases in which it was open to the accused to elect a jury trial.]

[Note: Justice Bhunu presided over the high profile criminal trial of MDC-T’s Senator Roy Bennett in 2009 and 2010. Mr Bennett was acquitted by the judge at the close of the State case.]

Defence application for postponement

Lawyer Charles Kwaramba, applying for a postponement on behalf of the accused, explained why it had not been possible for the defence team to complete the outline of the defence case that must by law be lodged with the court three days before the trial. It was only eleven days since the 1st March, when the accused had been indicted for trial and the State’s case outline and its list of State witnesses had been provided. All the accused had then been committed to prison, where it had been extremely difficult to conduct the interviews with each of them that were essential to the formulation of the defence outline. Part of the problem had been that prison officers had insisted on remaining within earshot during the interviews that had been conducted, despite the rule requiring lawyer-client interviews to be within sight of prison officials, but out of hearing range. And prison rules and bureaucracy limited the time that could be spent talking to the accused. The prosecutor argued that the postponement should be for one week only.

Adjournment to 15th March

Justice Bhunu adjourned proceedings until Thursday 16th March at 10 am at the High Court [Court A] for further argument over a postponement and a ruling on when the trial will start. Before the resumption of the hearing on postponement, the lawyers on both sides were asked to make further submissions to him in writing.

Bail application

On Thursday 16th Justice Bhunu will also deal with the defence application for the accused to be granted bail for the duration of the trial. By then he will have had time to read through the papers already filed by both defence and State for and against this application. The application, after being postponed several times, was due to be dealt with by Justice Chatukuta last Friday but instead of granting or refusing bail she decided it would be more appropriate for the application to be dealt with by the trial judge before the trial. [Reminder: 26 of the 29 accused were actually on bail for varying periods until they were ordered back to prison when committed for trial at the magistrates court on 1st March. See Court Watch 4/2012 for details.]

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State v Munyaradzi Gwisai and 5 Others

Judgment expected 19th March

Court Watch 2/2012 traced this case from the initial arrests on 19th February 2011 up to the defence application for the discharge of the accused at the close of the State case on 1st February. The accused, all of whom have said they were beaten and tortured, are all social justice and human rights activists:

• Munyaradzi Gwisai [University of Zimbabwe law lecturer, coordinator of the International Socialist Organisation’s Zimbabwe chapter, and former Member of Parliament]

• Antonater Choto [social and women’s rights activist]

• Tatenda Mombeyarara [Zimbabwe Labour Centre advocacy officer]

• Edson Chakuma [trade union official]

• Hopewell Gumbo [programme officer with Zimbabwe Coalition on Debt and Development (ZIMCODD) and a former student leader]

• Welcome Zimuto [university student and former Zimbabwe Nation Students Union (ZINASU) leader].

When the police first took the accused to court after their arrest, the charge was treason; but this was later reduced to a charge of inciting public violence with an alternative charge of conspiracy to commit public violence. [Note: As the offence of treason carries the death penalty, a charge of treason would have had to tried in the High Court, but a charge of public violence can be dealt with in the magistrates court, and the trial was duly held at the magistrates court in Harare.]

Developments since Court Watch 2/2012 are as follows:

Court puts accused on their defence

On 15th February the court dismissed the defence application for the accused to be discharged at the close of the State case. The regional magistrate, Kudakwashe Jarabini, ruled that the evidence presented by the State called for an answer by the defence.

Defence case

The defence case was then presented over three days – 27th to 29th February. All the accused gave evidence denying plotting public violence or an uprising against the Government. After hearing from the prosecutor and the defence lawyer Alec Muchadehama, the regional magistrate asked them both to make written submissions and said he would deliver judgment on Monday 19th March.

Written submissions delivered

The written submissions have been lodged with the court. The State’s submissions went in first and the defence reply was lodged early on 13th March.

Judgement due

19th March remains the date set for the delivery of judgment.

Mr Gwisai’s civil claim for damages

In October last year Mr Gwisai commenced civil proceedings against the Government claiming a total of $300 000 damages based on his treatment by the police at the time of his arrest and afterwards. He alleges unlawful arrest and detention, assault and torture. The Government disputes the claim. The next stage in the proceedings will be the holding of a pre-trial conference on a date still to be fixed.

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