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 second and third applicants
are executive members of an organization known as Mthwakazi Liberation Front.
The first applicant is the Deputy Secretary for ...
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 second and third applicants
are executive members of an organization known as Mthwakazi Liberation Front.
The first applicant is the Deputy Secretary for Security, the second applicant
is the Secretary General and the third applicant is the National Economic
Advisor. Mthwakazi Liberation Front 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, Mthwakazi Liberation Front'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 Mthwakazi
Liberation Front'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 Mthwakazi Liberation Front held an executive meeting on
the 1st March 2011 at the third 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 second 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, counsel for the respondent 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
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.”….,.
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
gravamen of the treason charge…., is the minutes of the meeting of 1 March 2011…,
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.”…,.
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.”…,.
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 SC30-04.
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.
