The trial of National Constitutional Assembly members facing charges of conducting themselves in manner likely to breach peace yesterday took a new twist when they made an application that the case be referred to the Supreme Court. (Pictured: NCA chairman, Lovemore Madhuku)Samson Nxumalo (21), Melusi Hlabano (21), both of Bulawayo Polytechnic College, Archford Mutizwa Mudzengi (24), of 343 Adiar Coghlan, Killarney, a student at the Zimbabwe School of Mines, Brian Mtisi (21) of 13 Pemburry Avenue Paddornhurst and Sheunesu Nyoni (22) Devos Avenue, Queens Park West, both of NUST pleaded not guilty to contravening Section 37 (1) of the Criminal Law (Codification and Reform) Act (participating in a gathering with intent to promote public violence, breaches of peace and bigotry) when they appeared before Mr Singandu Jele.
Last week on Wednesday the accused were supposed to be put on their defence with the NCA boss, Lovemore Madhuku who was present in court, supposed to testify in their defence.
However, their lawyer, Miss Nqobile Ndlovu of Coghlan and Welsh Legal Practitioners sprung a surprise and made an application to refer the matter to the Supreme Court in terms of Section 24(2) of the Constitution of Zimbabwe.
In her submissions, Miss Ndlovu said the criminal charges her clients were facing, contravened Sections 20 and 21 of the Constitution.
“There are no provisions in these sections that restricts this kind of application to be brought before this court at this stage of trial. On that basis we proceed with the application to refer the matter to the Supreme Court. In addition there is a recent Supreme Court judgment declaring Section 37 (1) unconstitutional or unduly limiting the freedom of association, assembly and expression,” she said.
Miss Ndlovu said the evidence by the State witnesses did not criminalise her clients’ conduct but the court made inferences to rule against their application for discharge at the close of the State case.
” The accused’s conduct did not in any way injure anyone, damage any property or attack any police officers during the procession which is subject to the charges they are facing. The court having so accepted the evidence by State witnesses it is only logical and rightly so that this court inferred the intention of the accused persons from that conduct,” said Miss Ndlovu.
She said her clients were seeking the redress of the serious humanitarian and political situation prevailing in the country and managed to do so.
“They indeed drew the international attention to the Zimbabwe situation. For them to be put on their defence to answer matters not leveled against them on their arrest is improper. As in essence Section 37(1) criminalises the person in a procession who sings, runs and waves placards, that criminalisation is unconstitutional in terms of the Supreme Court ruling in a case of Jennifer Williams and Magodonga Mahlangu versus Phathekile Msipa, Minister of Justice and Legal Affairs and the Attorney General, passed three weeks ago,” she submitted.
Williams and Mahlangu’s Supreme Court case number is SC53/09.
Miss Ndlovu said the application was properly brought to the court and it was not frivolous and vexatious.
“Presently there is nothing frivolous or vexatious for the court to refer the matter to the Supreme Court, because the same court has referred to this charge as unconstitutional as it unnecessarily limits the right to the freedoms enshrined in the Constitution. Placing the accused on their defence will merely bolster the State’s case. As such the request has been made by the accused person for this court to refer the matter to the Supreme Court as it is mandated by Section
24(2) of the Constitution,” submitted Miss Ndlovu.
In its response the State, represented by Mr Jerry Mutsindikwa said they were not against the matter being referred to the Supreme Court, but wanted to first see the Supreme Court ruling on the Williams and Mahlangu’s case so that he would make an appropriate response.
“This obviously has a bearing on the nature of the response that the State will give. I would want to familiarise myself with the judgment rather than arguing from a vacuum. Our wish is to see justice being done nothing more or less than that,” submitted Mr Mutsindikwa.
The matter was postponed to 15 July for the State to study the judgment.
Charges against the five are that on 11 November last year, at around 10.20 am they demonstrated in the city centre singing, running and waving placards with the intention to cause public violence, breach public peace and bigotry.