NDOU J: The
applicants seek bail pending trial. The
background facts are the following. The
applicants are jointly charged with the crime of treason as defined in section
20(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The 2nd and 3rd
applicants are executive members of an organization known as Mthwakazi
Liberation Front (“MLF”) . The 1st
applicant is the Deputy Secretary for Security, 2nd applicant is the
Secretary General and the 3rd applicant is the National Economic
Advisor. MLF was launched as a political
party on 28 December 2011 in Bulawayo and its main objective is to create a
separate state from Zimbabwe called the Republic of Mthwakazi. According to the applicants in their bail
statement, MLF's agenda “is to campaign for the revival of the autonomous
Mthwakazi nation which existed prior to colonization by way of engaging the
government of Zimbabwe in negotiations with a view to agreeing to a referendum
where people will vote to decide whether or not an autonomous Mthwakazi nation
should be revived.” A copy of MLF's
constitution was filed in this application.
In Article 2 the purpose is stated as follows:
“The prime purpose of MLF is to represent, support, assist,
defend and promote the people of Mthwakazi, their culture and languages, in
spite of race, gender or ethnic origin.”
The constitution has an annexure in
the form of a map of the proposed Mthwakazi state, which includes Bulawayo,
Matabeleland North, Matabeleland South and parts of Midlands Province. The MLF held an executive meeting on the 1st
March 2011 at the 3rd applicant's office located at number 3
Princess Park Mansions, Bulawayo. The
proceedings of the meeting were recorded and a copy of the minutes was
recovered from the 2nd applicant on his arrest. A copy of these minutes was filed in this
application. The specific factual
allegations as contained in the Request for Remand Form 242 are the following:
“On 1st of March 2011 at office 3, Princess Court
Mansion, Bulawayo, the accused persons conducted an executive meeting together
with other seven who are still at large.
During the meeting they connived and agreed on ways to influencing
people to rise and demonstrate against the government which would result in
creation of a separate state of Republic of Mthwakazi. Accused agreed to distribute fliers of which
amongst others had the following messages “Vukani
njengabantu base Ethiopia, Sudan, Egypt le Tunisia” (literally translated
to mean rise up like people of Ethiopia, Sudan, Egypt and Tunisia, they are
people like us and have blood as well.)”
The evidence on which the factual
allegations are based is stated in the Request for Remand as being that:
“1. All
the three accused persons were found in possession of Mthwakazi Liberation
Front fliers and calendars.
2. There
are minutes of the meeting in which the accused persons and others agreed to
distribute.
3. Pamphlets
were recovered from accused number one.”
At the commencement of this
application Ms Cheda sought to amend
paragraph 1 to say accused 1 was distributing the fliers. The applicants have indicated that they will
deny the charge of treason. The 1st
applicant is a family member who lives with his family at F78 Njube,
Bulawayo. He is not employed. He did not attend the MLF executive meeting
of 1 March 2011 and is not eligible.
This is common cause or at least beyond material dispute. The respondent, while conceding that indeed 1st
applicant did not attend the MLF executive meeting where alleged treasonous
resolution was made, alleges that he was “in the vicinity” performing his
security duties. Initially the factual
basis for the charge against him was that he was found in possession of 3 MLF
fliers and a calendar. As alluded to
above the respondent later amended those facts to say he was actually
distributing the said fliers. The 1st
applicant is married and has three children.
He is HIV positive (he declared his status in this application). He holds a passport. He has resided in South Africa but returned
in 2010.
The2nd applicant is a family man who
lives with his family at number 21 Chopping Road, Barham Green, Bulawayo. He is married with four children. He is a businessman and runs a construction
company. He is a veteran of the war of
liberation, having fought under Zimbabwe People's Revolutionary Army
(ZIPRA). He denies the treason
charge. He attended the MLF executive
meeting of 1st March 2011 and is the one who recorded the minutes of
the meeting. He holds a passport.
The 3rd applicant is a
family man who lives with his family at number 18, 4th Avenue,
Woodville, Bulawayo. He is married with
four children. He is a businessman
running his own company. He has
participated in presidential elections before.
He attended the MLF executive meeting of 1st March 2011. He has a passport. The respondent opposes the granting of bail
on the following grounds.
“1. The
applicants are facing a serious offence.
2. The
applicants are likely to pursue their agenda of removing the government through
unconstitutional means.
3. The
applicants may interfere with police investigations.
4. The 2nd
and 3rd applicants have a propensity of committing similar
offences.”
The respondent alleges that the language used in the fliers
is “insulting, inflammatory and incites members of the army to defect from the
army, refuse to carry out orders from their superiors, to take their weapons
and join the army in Mthwakazi Republic.
The messages also incite members of the public, civil service to rise
against the government like the people of Tunisia and Egypt. The messages also incite members of the
non-governmental organizations, political parties, labour unions, churches to
join Mthwakazi Liberation Front in order to liberate the people of Mthwakazi
from 30 years of dictatorship, 30 years of one man rule and 30 years of fake
independence. It is submitted that the
messages in the fliers are treasonous.”
The respondent further alleges that because 1st
applicant was staying in South Africa and has contacts there. As far as 2nd and 3rd
applicants are concerned, they have travelled to South Africa and Botswana for
MLF meetings because the MLF President and Vice President are resident in
Botswana and South Africa respectively.
All these facts are alleged to indicate capacity to abscond on their
part.
Whilst the respondent concedes that the witnesses it has so
far are all police officers it is convinced that its evidence against the
applicants is overwhelming. The
respondent's case is that the message in the fliers is the creation of
Mthwakazi Republic through unconstitutional means. The 2nd applicant is said to have
a 1981 previous conviction for armed robbery and a pending case of attempted
murder.
The gravamen of the treason charge as alluded to above is the
minutes of the meeting of 1 march 2011, supra,
and the fliers. The respondent excised
parts of the minutes under the heading “Documents”. Because of the nature of the charge in casu, it is only fair that this
paragraph is cited in full to avoid an incomplete understanding of the meaning
of this paragraph. This paragraph reads:
“Documents
Visitors now under surveillance could not carry docs 2
mting. When it is appropriate the docs
will be availed to all [pamphlets 1-10. 12 lc copies per pamphlets. 10 lc goli,
10 lc Bots. Bulk in Z. Wl be presented 2 security to
distribute]. Last paper “Restoration
Form” campaign form. “Cessasion” form
now changed 2 “Restoration form. 200
names per form 2000 copies. Campaign 4rm
indig Mthwakazi residents. The form is
not final. Put 4ward recommendations – terms
of reference, historical background of Mthw Liberation [History – Boundaries –
Map] Reach consensus on map. Land area.
Indig ppl belonging 2 Mthw state 1893-1980. Post indep Mthw history 2 present survivors
of violence. Father Motsi interviews. (5)
Policy of Mthw. Governance. What are we saying about minorities e.g.
gays. Plug loopholes in the constitution
& society at large. How do we
conclude this issue. Security concerns
voiced by certain members. “Underline “WE
WANT MTHW PEACEFULLY” Suggestions 4rm
local Mthw welcome. MLF rumoured to b
part of uprising that was pegged 4 march.. They say secession is MLF
agenda. How do we counter that? MLF should come up with position paper &
issue press statement. We shud
dissociate ourselves 4rm the national issue & state that we stand 4
Mthwakazi. We have 2 b careful about
these things that they want to include us in. Let us thank our colleagues 4 their
effort.” (emphasis added)
Thereafter the meeting discussed the constitution and other
bread and butter issues not relevant to this application. Read in context, the above paragraph does not
advocate for the removal of the government by unconstitutional means as alleged
by the respondent. The only alleged
treasonous statements can be traced in some of the fliers found in the
applicants' possession. I have already
quoted from some of them. The respondent
was particularly concerned by the flier addressed to the Zimbabwe Armed Forces
which reads-
“Please remember the current Zimbabwe national Army was
created in 1980 with the merging of two liberation forces ZPRA and ZANLA. It's a fact ZANLA was composed of combants
whose ranks were mainly drawn from the Northern part of the country
(Mashonaland) and ZPRA whose ranks were mainly drawn from the southern part of
the country (Matabelaland). All it means
now then is that the people of Mthwakazi (Matabelaland) have equal interest and
representation in the army. We have as a
people of Mthwakazi invested as much interest as anyone else in the army structures. The notorious 5th Brigade was
never part of the national Army – is was ZANU-PF murder squad. When merging with ZANLA to form the Zimbabwe
National Army, ZPRA cadres brought with them all their weapons and equipment, at
the time of separation you are all urged to come back to your country and
establish your own sovereign army.
Aluta Continua! Aluta Continua!
Aluta Continua! Abantu Yithi!
Stop being used to kill your parents and the very people who
fed and protected you during the war of liberation. It's a great shame. Stop taking orders from murderers. Come back home and establish your own
Mthwakazi Armed Forces. We need you.
Refuse to protect murderers
Refuse to shoot your parents
Refuse to kill the masses
Refuse to carry guns
Refuse to intimidate the masses
Refuse to be used!
Refuse to take part in politics
Refuse to protect political lunatics
Join the People's Forces Now!!
It's your time to be free!!
Friendly message from General Nandinatoli, President MLF.
Vuka Mthwakazi Vuka” (Emphasis added) The other fliers are mainly recruitment
material and list of grievances against the government. One that is worth commenting on reads-
“Move out of our land!!
And we mean it!! Move out please!
The earlier the better!
Move out of our borders!
Move out of our towns!
Move out of our villages!
Move out of our farms!
Move out of our mines!
Move out of our hospitals!
Move out of our schools!
Move out of our rivers!
Move out of our dams!
We need an independent referendum today!!
Mthwakazi must be independent!!
All murderers, rapists, tribalists and killers, leave our
land today!!
We mean final business!!!”
Whether all these fliers' contents are treasonous is for the
trial court to decide. I have just
highlighted the contents to deal with the strength of the respondent's
case. The latter is a relevant factor in
the determination of the bail application - S
v Makamba SC-30-04. These fliers do not expressly advocate for
the removal of the government by unconstitutional means. The investigating officer, Mupungu and the
state counsel have paraphrased the contents of these fliers and interpreted
them to be advocating for treasonous removal of the government. It is trite that in bail applications the
primary question for consideration is whether the applicant will stand trial or
abscond. Of equal importance however, is
whether the applicant will influence the fairness of the trial by intimidating
witnesses or tampering with evidence – section 117 (1) and (2) of the Criminal
Procedure and Evidence Act [Chapter 9:23]; Attorney
General v Phiri 1987 (2) ZLR 33
(H); S v Ndlovu 2001 (2) ZLR 261 (H); S
v Biti 2002 (1) ZLR 115 (H); S v Essack
1965 (2) SA 161 (D); S v Jongwe 2002 (2) ZLR 209 (S); Aitken & Anor v Attorney General 1992 (1) ZLR 249 (S); S v Tsvangirai 2003 (1)
ZLR 650 (H) and S v Gwisai and Ors Harare HCB 283-8/11
(unreported). The approach is one of
striking a balance between the interest of society (i.e. the applicant should
stand trial and there should be no interference with the administration of
justice) and the liberty of an accused person (who, pending the outcome of
his/her trial, is presumed innocent). I
now propose to deal with the grounds raised in opposition in turn.
Seriousness of the offence
There is no doubt treason is a
serious offence. This is a relevant
factor. An expectation of a lengthy
custodial sentence or capital punishment may be an incentive to abscond. I have to take this factor into account – S v Makamba,
supra, and S v Biti, supra. However, this factor has to be balanced against
the apparent weaknesses in the state case highlighted above. Further, in
casu, the conduct complained of comprise possession (and in the case of 1st
applicant, distribution) of a few fliers and calendars. There are no objective facts on the ground
that any member of the public took these fliers and/or calendars seriously.
Likelihood of interference with
police investigations
In
casu, the only known state witnesses are the arresting police offices and
the state has not shown how the applicants can interfere with such police
witnesses. The averment of interference
is unsubstantiated and bald.
Propensity of committing similar
crimes to treason (2nd and 3rd applicants)
Even if this contention is well
founded, it is not itself not necessarily a valid reason for denying the
applicants bail. In S v Tsvangirai, supra it
was held that even though the state's fears were not totally unfounded, this
could be catered for by the imposition of appropriate bail conditions. Taking all the above factors into account I
conclude that the applicants are suitable candidates for bail characterized by
stringent conditions to cater for the state fears. These conditions will unfortunately limit
their aspirations as in the political arena but they are necessary in the face
of the serious allegations they face and their previous brushes with the law.
Accordingly, I admit all applicants
to bail on the following conditions.
- Each applicant to deposit US$2
000 with the Registrar of the High Court, Bulawayo.
- The 1st applicant to
reside at house number E78 Njube Township, Bulawayo until the matter is
finalized.
- The 2nd applicant to
reside at number 21 Chopping Road, Barham Green, Bulawayo until the matter
is finalized.
- The 3rd applicant to
reside at number 18, 4th Avenue, Woodvale, Bulawayo until the
matter is finalized.
- Each applicant is to report at
Bulawayo Central Police at CID Law and Order three times a week on
Mondays, Wednesdays and Fridays between 6am and 6pm.
- The applicants are to surrender
their passports respectively to the Registrar of the High Court, Bulawayo
- Each applicant is not to
interfere with any state witnesses or evidence.
- Each applicant shall not leave
40 kilometres radius of Bulawayo Main Post Office without written leave of
a Bulawayo magistrate.
- Applicants shall not attend
political gatherings.
Cheda & Partners, R Ndlovu &
Partners, Phulu and Ncube, applicants' legal practitioners
Criminal Division Attorney General's Office,
respondent's legal practitioners
