On October 4 Douglas Mwonzora will be in court in a case in which he and 21 of his Nyanga constituents have challenged the constitutionality of their prosecution on charges of public violence. After an MDC-T rally in Nyanga, Mwonzora and his co-accused were arrested and detained in February on allegations of public violence. Their release on bail was delayed until March. At a later remand hearing the magistrate granted a defence request to refer constitutional issues to the Supreme Court.
The Prime Minister brought a case against the President in the High Court for unilaterally appointing provincial governors in 2010 in breach of the Constitution’s provision requiring the Prime Minister’s agreement to such appointments. The President tried to block the case with a technical objection that the Prime Minister should have obtained, but did not, the leave of the High Court before launching a case against the President. Justice Chiweshe refused leave to appeal against his decision.
As expected the President, as permitted by law, made a second application for leave to appeal to the Supreme Court. This application, made on August 3, will be decided by a Supreme Court judge. The Prime Minister has filed papers opposing the granting of leave to appeal, and a ruling is now awaited.
In the MDC leadership dispute case, two High Court judges have ruled that Welshman Ncube, not Arthur Mutambara, is the lawful President of the MDC.
Both judges rejected the Mutambara camp’s attack on the validity of Professor Ncube’s election at the party’s congress in January 2011. Both decisions have been temporarily neutralised by the noting of appeals to the Supreme Court by Professor Mutambara and his supporters. A hearing is awaited.
Lower to Supreme Court
The following cases, referred to the Supreme Court for judgements on constitutional challenges arising from cases in lower court, are still waiting for hearing dates.
Freedom of expression cases pending include one against the Chronicle editor and a journalist [Brezhnev Malaba, now former editor, and Nduduzo Tshuma]. In this case the State prosecuted on a criminal defamation charge based on a story alleging corrupt conduct by senior police officers. Similar charges were leveled against the Standard Editor Nevanji Madanhire and journalists Patience Nyangove and Nqaba Ntshazi.
On charges of insulting the President, Owen Maseko and Media Monitoring Project staff members Gilbert Mabuza, Fadzai December and Molly Chimhanda face trial. As well as MDC-T MP, Pishai Muchauraya and MDC-T MP, Lynette Karenyi.
Section 121(3) of the Criminal Procedure and Evidence Act enables a prosecutor to delay the release of an accused person who has been granted bail by a court, simply by telling the court that the State wishes to appeal against the grant of bail.
A case involving MDC-T Director General Toendepi Shonhe has raised the constitutionality of section 121(3) and was referred to the Supreme Court in 2009. It has still not been heard, neither has a date been set.
Recent cases
Three cases are pending before the court involving persons charged with contravening section 79 of the Criminal Law Code. The section is headed “deliberate transmission of HIV”. The defence contention is that section 79 is unconstitutional and invalid, because it is too vague and discriminates against HIV positive people. These cases have been referred to the Supreme Court.
In February 2012, members of WOZA were charged with criminal nuisance. The prosecution says that 10 WOZA members, while displaying placards and distributing fliers in Bulawayo streets, disturbed the free flow of both pedestrian and vehicle traffic. On 20th June 2012 a Bulawayo magistrate, at the request of WOZA lawyers, referred to the Supreme Court the question whether or not their constitutional right to freedom of assembly had been violated. Their argument was that the Constitution permits derogation from this constitutional right only in terms of a “law” meeting certain requirements.
In the midst of ZBC’s current blitz against unlicensed listeners, Harare magistrates have referred to the Supreme Court two prosecutions of unlicensed possessors of TV sets.
Post published in: News