COURT WATCH 3/2011

[November 2011]

As part of our new series – Court Watch – Veritas will be doing a series of summaries of criminal cases brought against political and human rights activists.  It is an anomaly under the present circumstances of the country that although MDC-T and MDC are part of an inclusive government, they seem to be treated by State agents as “opposition” parties and that, despite official lip service to freedom of speech and movement, human rights activists are frequently arrested.

Proceedings against Douglas Mwonzora, MP

We are starting with summarising proceedings taken against the Hon Douglas Mwonzora as, not only is he an experienced and respected member of the legal profession, but he is also a prominent political figure – an MP for Nyanga North and the Constitution Parliamentary Select Committee [COPAC] co-chairperson.  In his MDC-T party he is a member of his party’s National Executive, as Secretary for Information and Publicity, and is their official spokesperson.  There have been four cases taken against him.

Case 1 – Incitement of Public Violence at Nyanga, February 2011

Circumstances of the alleged offence:  On Saturday 12th February there were clashes between MDC-T and ZANU-PF followers in Mr Mwonzora’s Nyanga North constituency, following a meeting addressed by Mr Mwonzora at a school.  Damage was caused to property at nearby Nyakomba Business Centre and 8 people were injured.  Police took action against MDC-T supporters only.  22 were arrested and accused of public violence.  Among those arrested and detained was an 82-year old headman, Rwisai Nyakauru, who was seriously assaulted by ZANU-PF elements before being handed over to police.  

Circumstances of Mr Mwonzora’s arrest:  On 15th February, Mr Mwonzora was arrested outside Parliament as he was leaving after that afternoon’s sitting.  He was detained overnight in police cells at Rhodesville Police Station and moved to Nyanga the following day.  There he was taken to the remote Nyamaropa police post and when his lawyers eventually traced him, they were denied access to him.  Only on 18th February were Mr Mwonzora and his 22 co-accused taken before the Nyanga magistrate for remand.  

Charge:  Mr. Mwonzora is alleged to have incited public violence in contravention of section 36(1)(a) of the Criminal Law Codification and Reform Act [the Criminal Law Code], a serious offence which carries a maximum penalty of ten years’ imprisonment or a $2000 fine or both.  His co-accused face the same penalties for allegedly committing acts of public violence.

Bail delayed by unsuccessful State appeal:  At the first court appearance on 18th February a bail application was lodged.  The State opposed bail, but on 21st February the magistrate, Ignatius Mhene, granted bail to all the accused.  Bail was set at $50 each, coupled with an order to report once a week to the police.  But the prosecutor thwarted their release by immediately invoking section 121(3) of the Criminal Procedure and Evidence Act [CPE Act].  This had the effect of suspending the operation of the magistrate’s bail order and allowing the State seven days within which to appeal against it.  The State lodged its appeal in time, with the result that Mr Mwonzora and all the other accused remained in remand prison from 21st February until their eventual release on bail after the hearing of the appeal nearly three weeks later.  

The High Court bail hearing:  A hearing set down for 7th March was postponed to the 9th March because presiding Judge Justice Mavangira identified defects in the record of the proceedings in the magistrate’s court.  The hearing resumed on the 9th March and continued on 10th March.  Finally, on 11th March, the judge dismissed the State’s appeal, thereby confirming the magistrate’s order granting bail and entitling Mr. Mwonzora and the other accused to be released as soon as their bail could be paid.  Mr Mwonzora’s lawyers managed to complete the necessary formalities in time for him to be released late on the morning of 12th March, a Saturday.  Mr Mwonzora had spent a total of 24 days in detention.

Case referred to Supreme Court:  Weeks then passed with all accused out on bail pending their eventual trial.  At a routine remand hearing on 10th May lawyers for Mr. Mwonzora and the other accused filed an application in terms of section 24(2) of the Constitution asking for certain constitutional issues to be referred to the Supreme Court for decision.  They argued that fundamental rights to liberty, protection of the law and protection from inhuman and degrading treatment, as enshrined in sections 13, 18 and 15 of the Constitution, were violated when they were arrested, abducted and detained in filthy police and prison cells in Nyanga and Mutare.  A section 24(2) application must be granted unless the court finds it to be frivolous or vexatious.  On 23rd May magistrate Mhene granted the application and ordered that all the constitutional questions raised be referred to the Supreme Court for decision.  He said that none of the questions could be described as frivolous or vexatious.  This had the effect of indefinitely postponing the criminal proceedings pending the Supreme Court’s decision.  

Present status The constitutional case has not yet been set down for argument in the Supreme Court and it is not known when it is likely to be heard, as the magistrates court record submitted to the Supreme Court turned out to be incomplete.  Meanwhile, in June, the State made an application in the magistrates court for the trial to proceed, notwithstanding the referral to the Supreme Court.  This application was turned down by magistrate Mhene.  The Attorney General’s office then filed an application in the High Court for the magistrate’s refusal to proceed with the trial to be overturned.  This application is also awaiting hearing.  Pending developments in the Supreme Court and High Court, Mr. Mwonzora and his co-accused remain on bail but without having to report to the police every week – that bail condition was revoked by magistrate Mhene on 23rd May when he granted the referral application.

Allegations of maltreatment by police and prisons:  Mr Mwonzora says he was denied water, food and medication during his three days in police detention cells.  He was held also incommunicado in illegal solitary confinement and prevented from seeing his lawyers.  He has said he intends to sue police for damages.  During the three weeks that Headman Nyakauru, aged 82, was in prison on remand he was denied access to private medical practitioners and his health deteriorated rapidly, resulting in his death a few weeks after his release.

Implications of Mr Mwonzora’s arrest and detention:

• For the constitution-making process – for the three weeks plus that Mr Mwonzora was incarcerated he was unable to do his work as co-chairperson  of COPAC.  The cost of this delay to the process was considerable.  When Mr Mwonzora resumed work at COPAC on Saturday afternoon, having been release on Saturday morning in Mutare, the first thing he discovered was that, while he was away, data from the Diaspora submissions to COPAC had been excluded from the data uploading process which was said to have been completed during his absence.  There was a further delay in the process while this serious omission was remedied.
• For the MDC-T in Parliament – Mr Mwonzora’s enforced absence from the House of Assembly deprived the party of his vote during that period.  Given the delicate balance of party strengths in the House, this might have affected the result of any votes during the period. 
• For his constituency – Mr Mwonzora was not accessible to citizens of his constituency.
• For his party organisation – As a key member of the MDC-T executive, Mr Mwonzora's harassment and long detention have had a detrimental effect on his party’s functioning.

Other Three Cases Brought against Mr Mwonzora

The police have taken other, inconclusive, cases against Mr Mwonzora, including:

Allegedly insulting the President – the “Goblin” case

In January 2010, Mr Mwonzora was summoned to stand trial on a charge of insulting President Mugabe by calling him a “goblin” during a March 2008 election campaign speech.  Mr Mwonzora denied the charge and questioned the delay in bringing it, suggesting that the prosecution was a ploy to interfere with his constitution writing duties.  The prosecutor called off the trial and said he would issue a fresh summons.  Insulting the President in contravention of section 33 of the Criminal Law Code carries a penalty of up to one year’s imprisonment or a $300 fine of both.

Another insulting the President case – the “how is your eye?” case

While Mr. Mwonzora was still detained on remand in the Nyanga public violence case, police interviewed him and took a “warned and cautioned” statement from him about further allegations of insulting the President.  The accusation was that while at the magistrate’s court for a remand hearing on 7th March, Mr Mwonzora had addressed a portrait of President Mugabe saying “Makadii Baba? Irisei muviri?  Riri sei ziso?” [“How are you father, how is your health and how is your eye?”]  [The press had been full of stories about President Mugabe’s trips to the Far East for an cataract operation and subsequent check-ups.]  Mr. Mwonzora has denied the charge and explained that he was in fact inquiring after the health of his 82-year old fellow prisoner who was in poor health and had had his spectacles taken away from him by ZANU-PF thugs.

Resurrection of 2005 fraud allegations

Earlier this year, Mr Mwonzora was taken to court on a charge of fraud dating back to 2005, arising out of his role as lawyer for a purchaser of land.  The accusation was that the purchase price had been deposited in Mr Mwonzora’s trust account, but never paid over to the seller.  After several court appearances at which the complainant, who had signed an affidavit withdrawing her complaint, failed to appear, a Harare regional magistrate discharged Mr Mwonzora, saying it was would be contrary to justice to keep him on remand when the prosecution case was not in order.

At a Personal Level

It seemed a deliberate humiliation for police to arrest Mr Mwonzora as he was walking out of the doors of Parliament.  This was totally unnecessary – the police could have phoned his office and asked him to come to them.  His constant harassment, his public arrest, the refusal of bail, his detention for over three weeks and being constantly summoned to court hearings has impinged on his law practice and on his ability to earn to support his family.  He and his family have been kept in a constant state of tension and anxiety – and his wife and children have suffered emotionally.  At school his son was mocked for his father being in prison [although he had not been convicted] – what effect could this have on a child’s academic career?

Comments/Questions

• Was Mr Mwonzora’s arrest spurious?  This is for the courts to decide.
• Was arresting him at Parliament necessary or a deliberate humiliation for a prominent MP?  While MPs are not immune from arrest, picking Mr Mwonzora up at Parliament seems unnecessary.  Indeed, no arrest was called for.  A request to attend court would surely have sufficed to secure his presence.

• Was thwarting bail for a prominent MP justified?  Was the State’s use of section 121 of the CPE Act against Mr. Mwonzora and his co-accused defensible? Could the police seriously have been thought that an MP with national responsibilities to the constitution-making process, and an experienced and respected legal practitioner, would abscond and not face trial?  The High Court’s confirmation of the magistrate’s bail decision suggests that this was yet another misuse of section 121.  [The most recent statistics published by Zimbabwe Lawyers for Human Rights show that in most section 121 cases the State either does not note an appeal at all or fails miserably when an appeal is pursued and heard by the High Court.]
• Considering the personal and emotional cost to accused persons and their families, should not the police and public prosecutors look into the fact that there have been so many arrests which, as they do not lead to a prompt trial and conviction, give the impression of harassment.

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