BHUNU J: The appellant is the
executive director of the Centre for Research and Development, a registered
trust entity stationed at Mutare. Acting on information the police arrested him
on 3 June 2010 on allegations of publishing or communicating false statements
prejudicial to the state as defined in section 31 (a) (ii) of the Criminal Law
[Codification and Reform] Act [Cap 9:23].
The offence is punishable by up to 20 years imprisonment.
Upon investigations police
recovered two documents containing the alleged false information. A document
marked ECZ / FL 030 entitled, “March 2010 Progress Report was recovered from
the appellant's residence at number 2301 Chikanga Phase 2, Mutare. That
document reads in part:
“CENTRE FOR RESEARCH AND
DEVELOPMENT
GRANT NUMBER: ECEZ / FL 030
CHIADZWA WATCH
MARCH PROGRESS REPORT
OBJECTIVES
- To
identify victims of military and police brutality at Chiadzwa and record testimonies
on affidavits as evidence of abuse.
- To
identify perpetrators from the army and police who committed human rights
abuse in Chiadzwa and create a data base for future prosecution.
- To
obtain documents that proves that human rights abuses were committed in
Chiadzwa. The documents include hospital records, post mortem reports and burial
orders.
- To
identify victims that needs treatment.
PLANNED ACTIVITIES”
- Victim
identification.
- Perpetrator
identification.
- Gathering
documents.
- Treatment
of victims.
PROGRESS ON THE PLANNED ACTIVITIES
1.1 Victim identification
In the month of February
15 victims were identified in Chimanimani, Chakohwa and Marange. Of these 15
victims 2 were bitten by dogs, 2 were shot by guns and 11 were assaulted. The
CRD field officers interviewed the victims and recorded their testimonies on
affidavits. The victims were abused heavily by police, soldiers and security
guards in Chiadzwa.
1.2 Perpetrator Identification
The Centre for Research
and Development interviewed the victims and eye witnesses of the Chiadzwa
atrocities and came up with a list of perpetrators. These were mainly soldiers
and policemen employed to guard the diamond fields but ended up killing and maiming
civilians. Following are 8 names of some perpetrators of Chiadzwa atrocities we
managed to track during our research.
- Constable
Sam ZRP Marange 49-0731855 – 49, force number 060021P.
- Officer
commanding Mutare Rural, O.C. Govo.
- Colonel
Emmanuel Karande.
- Officer
Commanding Nyanga District, Chief Supt Chani.
- Officer
Commanding Chipinge District, Supt Jaboon.
- Constable
Muza who is based at Chikurubi Support Unit.
- Supt
Chipanda from the Support Unit.
- Senior
assistant Commissioner Matutu.”
The report goes on and on
to talk about the treatment of victims at various hospitals and clinics. It
also talks of the sighting of dead bodies of victims of the alleged abuse and
atrocities at various mortuaries. The sighting of graves of victims, burial
orders and so on and so on.
The second document is an
e-mail which the state alleges contains evidence of the publication of the
above documents to various people including one Tor-Hugne Olsen, Anton Dekker
and Gabriel Shumba. The e-mail is addressed to the appellant Farai Maguwu and
is copied to other three recipients. It appears to be a response to the above
report seeking further clarification of the alleged abuses and atrocities.
The e-mail reads in part:
Dear Farai
Thank you very much for this report
I have some questions and comments that I hope you
and your colleagues can answer and that these comments can be useful in future
reports.
1. The report starts with information about a sharp
increase in the number of people assaulted in the month of April. This is indeed
interesting. From your description of the assaults, some of these seem to
constitute torture. Have any of your
team had any training in identifying what constitutes torture? Are you in touch
with organisations that could help you differentiate between assault and
torture? (CSu)
2. Further down in the introduction you inform there is
a(n) increase of human rights violations against community members in three
named communities can you provide figures compared to last month as you did
with the assaults? (This later seems to increase to four, and I fail to
understand how, see below).
3. You are using the terms human rights violations
and human rights abuses and it is a bit unclear if you are distinguishing
between the two. I understand it as you are describing here is mainly human
rights violations as (as in committed by the state and its apparatus, i.e ZRP
and ZNA) and not so much human rights abuses. (Committed by non state actors,
individuals, terrorist groups etc) For example in the introduction you are
using both terms which might be confusing, and in 1.2 the fourth brigade should
clearly be a human rights violation and not abuse. I should think similarly 1.3…”
It is common cause that the
above report in fact contains prima facie
false statements as no one has suggested that the statements are true or has
reason to believe that the statements may be true.
The appellant appeared for
initial remand on 8 June 2010 before the presiding magistrate. At that hearing
the defence unsuccessfully opposed the placement of the appellant on remand
arguing that there was no prima facie case against the appellant. No appeal has
been launched against that ruling. The magistrate's ruling thus became firm and
binding. This Court therefore proceeds on the basis that the appellant has a
case to answer.
At the same hearing the
appellant unsuccessfully applied for bail. In dismissing his application for
bail the trial magistrate correctly took into account the following factors:
- Whether
the applicant will stand trial if granted bail.
- Whether
the applicant will interfere with investigations and witnesses.
- Whether
the appellant will commit further offences while on bail.
- Other
considerations which the court deemed good and sufficient.
In determining the matter
the presiding magistrate correctly appraised himself of the need to balance
both parties' competing interests that is to say the appellant's right to
liberty and the need to preserve the due administration of Justice.
Having carefully considered the
facts before him the magistrate made the following determination:
“This court takes note that
investigations are in this matter are still pending and this offence is of a
serious nature. As a result the reliance on bail by the accused at this stage
will not favour the interests of justice because investigations are not yet
complete As such there is a risk that
accused will interfere with investigations.
However, once investigations
are complete I don't see the reason why accused should not be granted bail
pending trial.
At this stage it is not in the
interest of justice to grant the accused bail, but the state is urged to
expeditiously wind up their investigations and on the next remand date bail is
going to be considered again.
The application is hereby
dismissed at this stage.”
Upon a careful analysis of the
magistrate's reasoning I can perceive no misdirection. An offence punishable by
up to 20 years imprisonment is undoubtedly a serious one. The state alleges that the appellant makes a
living out of publishing false information detrimental to his own country. That
kind of behavior if proved is treacherous and abominable particularly in these
times of national economic strife.
It is also self evident that investigations
were still in there infancy. While it is trite that the police must not arrest
to investigate, in this case the police are not guilty of that misconduct
because they already have sufficient evidence to place the appellant on remand.
All what they need to do is to complete their investigations without interference
or the ends of justice being compromised.
The presiding magistrate has
rightly urged the police to expedite their investigations to enable him to
fairly consider the merits and demerits of granting the appellant bail. Before
this Court the parties were haggling over whether or not investigations were
now complete. In my view this is an issue which should now be placed before the
magistrate. It cannot be a subject of appeal because the trial magistrate has
not determined the issue following his initial determination.
Apart from what I have said
above there are one or two other issues which I need to comment on before
putting the matter to rest. It was argued both before the magistrate and this
Court that the appellant had been ill-treated, denied access to medical
attention and unlawfully removed from remand prison by state agents. While the
courts do not condone that kind of misbehaviour it would be wrong and
injudicious for the courts to hastily move in and condemn one party or the
other without a proper enquiry into the allegations and before everyone
concerned has had a say. It must always be remembered that the audi alteram patem rule is the bedrock
upon which our criminal justice system is founded. For that reason neither this
Court nor the lower court could condemn either the police or the army upon the
defense's mere say so without concrete evidence and before they have been
heard.
Above all the mere alleged misbehaviour
of some overzealous state agents cannot be the basis upon which the granting or
denial of bail can properly be assessed Entitlement to bail has to be earned The
adage that two wrongs do not make a right is appropriate. The presiding
magistrate was therefore correct when he ordered an enquiry into the alleged
acts of misconduct so that remedial action could be taken according to law.
The state was correct in
conceding that the appellant be accorded medical attention forthwith and the
magistrate was also correct in granting that order by consent. It was however
wrong for the defence to take the issue on appeal to this Court when the
issue had been determined in their
favour and in the absence of any misdirection on the part of the lower court in
respect of that issue. If the consent order had been disobeyed the magistrates'
court is clothed with the necessary jurisdiction to regulate and enforce its
own judgments and orders. The High Court is not an enforcement agent for the magistrates'
court. The defence ought therefore to have invoked the procedures laid down by
statutes rues and regulations.
I am not persuaded that the
state case is weak as alleged by the defence having regard to the concrete
documentary evidence I have adverted to elsewhere in this judgment. That
evidence is in my view damning unless some witnesses turn hostile or are
severely discredited as happened in the case of The State v Bennet HH 79 – 2010. The sufficiency of evidence is
however, within the purview of the trial court .Suffice it to say at this stage
the available evidence points to a strong case against the appellant.
It has been also argued that
the state case is weak because the constitutionality of s 31 (a) (ii) of the
Criminal Law [Codification and Reform] Act [Cap
9:23] is being challenged in the Supreme Court. I take the robust view that
lower courts are not bound by decisions which though pending have not been made
by the Supreme Court. It is my considered view that no one has the right to
publish false information or statements to the detriment of others. If it were
so that would make nonsense of the law of defamation and perjury.
In the result, having found no
misdirection on the part of the presiding magistrate it is accordingly ordered
that the appeal be and is hereby dismissed.
Bere Brothers, the
Appellant's Legal Practitioners.
The Attorney General's
Office, the Respondent's Legal Practitioners.
