HUNGWE J: This matter was placed before me during
vacation through the Chamber Book as an Urgent Application one day after the
day applicant was due to appear before a court martial convened by first
respondent. The court martial did not take place as a result. I directed that
the matter be heard on the basis that it was urgent in that on the face of it,
the proceedings would amount to a serious violation of the applicant's
constitutional rights. A trial by a body which lacked jurisdiction in my view
is a serious violation of the right to a fair trial and an assault on the
provisions of S 18 (1) of the Constitution of the Republic of Zimbabwe.
A further ground for urgency existed in the fact that the termination or
continuation of proceedings in that court would depend on the determination of
this application. I also directed that the respondents file their respective
papers stating their positions with regard to the matter. This was done. The
matter was accordingly set down for hearing on 18 December 2007.
Applicant in this matter seeks an order of stay of proceedings
against him in the General Courts Martial of the Zimbabwe Defence Forces in the
following terms:
“INTERIM RELIEF GRANTED:-
Pending
determination of this matter the applicant is granted the following relief;
“1. The respondents be and are
hereby barred from proceeding with the Court Martial of the applicant on 7
December 2007 or any date thereafter until this matter is finalised on the
return date hereon.”
The relief sought in the final order was basically the
same as the above save that the applicants sought to attach procedural conditions
for the continuation of the trial. In view of that and taking a robust approach
to the papers I decided that a final determination of the matter on the merits
be made.
Applicant makes the following averments in his founding
affidavit. He was arrested by an army officer on 29 May 2007. He explained that
he never joined the army although he underwent some form of training under it
for three months. He therefore could not be charged under the Defence Act [Chapter 11:02]. Despite this explanation
the respondents insisted that he be charged for desertion under the said Act.
The basis of this submission is that upon joining the Zimbabwe National Army
(ZNA) in June 1989 at the School
of Infantry as a recruit,
he had to undergo a six month training course before he qualifies as a regular
member. He did not complete this period as he was selected to undertake a Cadet
Selection Course after three months. It would put him in a category from where
the ZNA selects its commissioned officers. He completed this course in March
1990. In September 1990 he was asked to either join a new group or resign from
the army. He opted to resign. He handed in his letter of resignation to one
Major Nyanda in September 1990. He says he surrendered his uniforms and other
military equipment to the said Major Nyanda. When he approached the same
officer for his terminal benefits he was directed to the Presidential Guard
Battalion who would process it for him.
At the Battalion offices he was told to go to his home
from where he would be contacted. The army had his then current Chitungwiza
home address. He went back to enquire about his benefits and was told to await
further communication from the battalion. He did not return there but to his
civilian life and resumed a teaching job with the public service. Some 16 years
later he was arrested by the army for desertion. He says as he never qualified
as a regular member of the ZNA there is no basis for the army to claim
jurisdiction over him. He ceased any connection with it in September 1990 when
he failed to make the officer cadet grade and resigned.
The respondents filed opposing papers. The respondents
raised points in limine objecting to the right of the applicant to approach
this court since being a soldier he is barred by s 18 (a) of the Defence Forces
(Discipline) Regulations from demanding a right to be tried by a civil court.
The answer to the point is simply that as his status is the essence of this
application this provision is clearly not applicable where an applicant seeks a
declaratur that he is not a soldier and therefore not subject to the Defence
Act. The plea to jurisdiction as this is what this will be in the martial court
can be raised and tried in that court where a court such as the present is
seized with the matter. For the purposes of this application the point in
limine is dismissed.
I will refer to the relevant averments from their papers
in determining this application. Most of the averments are responses to matters
in the applicant's founding affidavit which are not relevant in the
determination of the issue before me as I perceive it. From his papers the
applicant seeks this court to determine whether the General Courts Martial has
jurisdiction over him. Should I decide that it has no such jurisdiction then that
is the end of the matter. If I find that it has, then applicant must place most
of the issues before that court for its determination. I come to this
conclusion on the basis that on the papers there is no factual basis upon which
I could be asked to hold that their applicant cannot get a fair trial. I must
assume that this is an inherent competence of any tribunal to be fair.
In his opposing affidavit first respondent makes the
following averments. Applicant is a member of the ZNA. He was attested into the
ZNA on 6 June 1989. There is attached to the opposing papers, as confirmation
of the fact, an oath of allegiance and an affirmation of the same. It says:
“I Albert Matapo do swear that
during the period I am engaged for service or required to serve in the Defence
Force, I will be faithful and bear true allegiance to Zimbabwe and observe the laws of Zimbabwe.”
The Army Commander then states that applicant deserted
from duty in 1991 and was placed on an Absent Without Official Leave (AWOL)
List until his whereabouts were established upon his arrest by the ZRP on
treason charges. As the Commander of the Army, first respondent states that
applicant never resigned from the army. Had he done so he would have been
eventually ceased with his application for resignation. He would have had to
decide whether to authorise it or refuse it in writing depending on the
exigencies of the prevailing situation. At the time of the alleged resignation
he is unlikely to have authorised it as the army was engaged in military operations.
If he resigned such letter of resignation was never placed before him and
therefore he never authorised the application to resign in terms of the relevant
regulations which binding the applicant in terms of the Act.
As to whether the applicant is a member of the Army first
respondent states that in terms of the Defence Act and the regulations made
thereunder, the applicant is a member to which the Defence Act applies.
Defence (Regular Force) (Non-Commissioned Members)
Regulations, Statutory Instrument 172 of 1989, are of relevant application in
this matter.
In terms of S 2(1) of the regulations “member” means a
non-commissioned, officer, soldier or airman attested in the Regular Force, or
a regular attested in the Zimbabwe Peoples Militia. S 2(2) of the same
regulations states that any other term used in the regulations that is defined
in the Act shall be so defined in the regulations. What this means is that the
regulations import the definition section of the enabling Act as applicable
where the same terms are used. Where an undefined term is used in the
regulations but is defined in the Act, that definition applies to the
regulations. For example the Act defines a member to include an officer, a
non-commissioned officer or soldier of the defence force. Soldier in the Act
means any member other than an officer or a non-commissioned officer.
The section dealing with resignation defines “Resignation”
in relation to a member means
(a)
resignation from employment in the Regular Force in terms of Section 19: or
(b) His ceasing to serve on
completion of initial engagement.
There are four classes of engagement,
namely
(a) Short service engagement which shall be three years service;
(b) Air Force Technician's engagement which shall be for a period of
10years;
(c) Medium service engagement which is also ten years service; and
(d) Permanent service which shall be that service when a member
reaches fifty
(50) years of age. (S 5 of the Regulations)
Section 6 of the regulations requires a member, upon engagement, to
make oath or affirmation in a prescribed manner. Section 19 deals with
resignation. It provides the terms under which a member may resign from the
force. Sub-section (2) specifically provides that any member may, with the
consent of the Commander, resign during his period of engagement if two
conditions are met. Firstly a member must give three months notice in writing
to the Commander of his intention to do so, or any shorter period of such
notice which the Commander, in the interest of the Defence Forces, considers
appropriate. However no such notice shall be given while the member is on
vacation leave, on active service or under the order of a superior officer to
hold himself in readiness for active service.
The other condition is that a member must discharge all his monetary
obligations arising out of his employment with the State and must be certified
to have so discharged these before he makes an application for resignation.
Once a member fulfils the above conditions, his application is considered and
if the Commander is satisfied that resignation will not imperil his forces, and
that all outstanding liabilities have been satisfactorily discharged, he
approves of the resignation in writing for the applicant. In every case of
retirement, resignation, discharge or dismissal, the Commander is enjoined to
issue a certificate setting forth the member's name and service number, the
length of his service in the Regular Force and his rank at the date of
resignation retirement discharge or dismissal. (S 20 of the Regulations).
The question then is whether these regulations apply to applicant.
The ZNA is a disciplined force. It is the armed force of the republic of Zimbabwe.
There are rules and regulations such as there must be to regulate both officers
and men who are entrusted with the duty to provide both internal and external
security to the general citizens of Zimbabwe. Thus it is mandatory for
a member to swear allegiance to Zimbabwe
and to the upholding of the laws of Zimbabwe by all officers and men
who constitute the Zimbabwe National Army. The force carries out a
constitutional mandate in regulating not just its own affairs but that of the
public. The resultant peace and security enjoyed by every person in Zimbabwe is a
product of hard work by forces of law and order to which the ZNA is no small
player. The need for the observance of the rule of law within such an
organisation cannot be over-emphasised. Indeed were the ZNA to be otherwise the
consequences would be too ghastly to contemplate. The Order of Command is very
clear from the Act and the regulations. These bind the smallest unit and most
inferior rank as they bind all the officers of the ZNA. This much is clear from
the enabling act and the regulations made thereunder. From a reading of the Act
and regulations, a recruit of the ZNA is much a member as is the Commander the
moment he takes his oath of allegiance. It is not material that he has not
undergone this or that training as that decision is for the Commanding officer
to make having inducted the recruit into the Army. In order for one to obtain an honourable
disengagement with the ZNA the rules require the member to submit written
application to the Commander. That application can only be made if the condition
conducive to peace and tranquillity prevail. The Commander is unlikely to
consider an application when his force is engaged in combat with enemy forces
outside the country or there is a threat of armed insurrection within the
jurisdiction. The requirement to submit to him any resignation therefore is
reasonable and consistent with the fulfilment of his constitutional obligations
as the Commander of the armed forces.
There is an oblique reference to fear of bias from the courts
martial. There is no basis for this fear. An unsubstantiated claim such as this
cannot be ground to exclude the clear jurisdiction of all matters military from
the courts martial. In my view the establishment of courts martial is
consistent with similar organisations mandated to discharge the security
functions at the national level. Security sensitive material will be preserved
if the appropriate courts martial handle matters properly within their domain.
There are sufficient statutory provisions to secure the rights of innocent
members who find themselves appearing in these courts. In any event the appeal
system allow appellant hearing in the Supreme Court should the matter require
this to be so.
Applicant was attested in the ZNA in June 1989. He never applied in
terms of the rules to resign from the army. He was properly put on the AWOL
list and his arrest is in procedural in terms of the applicable regulations.
The fact that the arrest comes some 16 years after does not detract from the
lawfulness of the arrest. It is a matter which the General Courts Martial would
have to address at an appropriate stage in the hearing. There is in my
respectful view no basis for the order sought.
Consequently I dismiss the application with costs.
Warara and Associates,
legal practitioners for the applicant
Civil
Division, Attorney-Generals' Office, legal practitioners for the respondents
