Captured courts deliver partisan justice

THE magistrates’ courts have been lenient in granting bail to accused persons affiliated to Zanu PF officials, while being reluctant to do the same for human rights defenders and opposition activists charged with similar offences.

NATHAN GUMA

There are now calls for robust measures to deal with the unethical conduct of magistrates who connive with external stakeholders on bail proceedings.

The courts have jurisdiction to apply both customary law and general law in the determination of civil cases.

According to the Journal of Democracy Governance and Human Rights, edited by human rights lawyers Justice Alfred Mavedzenge and Musa Kika, there has been a growing trend in which accused people affiliated to the ruling Zanu PF have been granted bail, compared to their opposition counterparts, despite a high likelihood to skip bail or interfere with witnesses.

 “Judicial Service Commission (JSC) needs effective and robust measures to deal with unethical conduct of the magistrates who connive with external stakeholders on bail proceedings. Equally important is for the JSC to set up anonymous safeguarding pathways, allowing magistrates to report intimidation, victimisation, or duress with confidentiality,” reads the report.

 “Furthermore, the JSC should ensure that magistrate courts not only have a rapporteur in court who will digitally type court proceedings as they unfold but also provide a specific timeline indicating the number of days required for a court record to be available. Over the years, this has been the discretion of the magistrate, and some of the magistrates have allegedly withheld these records whilst an accused is in remand for a prolonged period.

“Civil society organisations should lobby Parliament and the Ministry of Justice and Parliamentary Affairs to amend the Criminal Procedure and Evidence Act, especially the Third Schedule, which focuses on crimes against the state.”

Growing trends have shown that Zanu PF activists have had the privilege of being granted bail unlike their opposition counterparts.

Opposition members and human rights activists

For instance, in August last year, 13 Zanu PF activists were charged with inciting public violence in an incident that resulted in the death of Citizens’ Coalition for Change (CCC) activist Tinashe Chitsunge, in Harare’s Glen View 7 suburb, during a sanctioned rally.

 A total of 15 perpetrators were arrested on 4 August 2023 and granted bail nine days later on 13 August.

 On the other hand, human rights activist Makomborero Haruzivishe was charged for a similar offence and was granted bail after being remanded in custody for 14 months.

“Looking at these two cases, it is concerning to note that a HRD who was merely exercising his right to demonstrate, an incident which did not result in the death of anyone, was granted bail after 14 months,” reads the report by Democratic Governance and Rights Unit (DGRU), Zimbabwe Human Rights NGO Forum, the University of Zimbabwe and the University of Cape Town.

 Similarly, the case of the “Zanu PF 11”, who were charged for public violence and murdering Mbongeni Ncube, seems to buttress observations on selective application of the law in Zimbabwe.

Ncube, a CCC supporter, was stabbed to death with a spear by suspected Zanu PF activists at a sanctioned rally that was addressed by then CCC leader Nelson Chamisa.

Although the alleged perpetrators were charged with public violence and murder, they were granted bail in 46 days.

 On the other hand, Job Sikhala, a former legislator for Zengeza, was in June 2022 charged for inciting violence, and spent 595 days in pre-trial detention at Chikurubi Maximum Security Prison, before his release a fortnight ago.

This week, Sikhala was convicted on charges of communicating falsehoods prejudicial to the state under section 31(a) (iii) of the Criminal Law (Codification and Reform) Act. Other opposition human rights defenders have taken long to be granted bail compared to their Zanu PF counterparts.

For instance, it took six months before activist Pride Mkono was granted bail, after he was charged with subversion, after posting a tweet condemning President Emmerson Mnangagwa’s misgovernance.

 Opposition legislator Joanna Mamombe was granted bail after 62 days on accusation of fabricating a story about being abducted in 2020.

Mamombe was acquitted in 2023. In 2021, Harare mayor Jacob Mafume was granted bail after a month following his arrest on accusation of attempting to bribe a key wit ness in another pending matter that he had been granted bail.

Zanu PF-linked accused people

 Strikingly, that has not been the same with accused people linked to Zanu PF, despite being implicated in major corruption cases.

 For instance, Mnangagwa’s niece Henrietta Rushwaya was granted bail after 179 following her arrest for attempting to smuggle six kilogrammes of gold worth US$333 042.28, via Robert Gabriel Mugabe International Airport.

Rushwaya was in 2022 acquitted in the case, in which she was also accused of trying to bribe an airport official with US$5 000 to facilitate the smuggling.

Another Zanu PF bigwig, Priscilla Mupfumira, was granted bail after 64 days, in a high-pro file corruption case in which she was accused of looting US$95 million from the National Social Security Agency (Nssa).

In 2019, she tried to avoid trial, claiming that she had been suffering from depression and needs time to recover as she has undergone a medical operation.

The prosecution laid out charges ranging from alleged abuse of money to financing Mupfumira’s political campaign and to directing investments of up to US$62 million into a bank against the advice of Nssa’s risk committee.

She has, however, made a rebound into active politics as one of the Zanu PF senators from Mashonaland West Province. In 2021, former Local government minister Ignatious Chombo was granted bail after four days after being involved in an illegal grab of 125 commonage stands at Haydon Farm, before allocating himself low-density residential stands in Harare.

Controversial Zanu PF-aligned businessman and ex-convict Wicknell Chivayo was also absolved of wrongdoing following accusations of misappropriating US$5.6 million for the 100 megawatt (MW) Gwanda solar project, after the Harare magistrates’ court agreed that there had been an unreasonable delay in the prosecution.

In 2015, Intratrek, a company owned by Chivayo, won a US$193 million tender to build a 100MW solar project, aimed at easing pressure on the dilapidated Hwange and Kariba power stations, a project that has not made headway, eight years later.

The Zimbabwe Power Company (ZPC) in 2015 filed charges of fraud against Chivayo, accusing him of pocketing US$5 111 224 paid to him for pre-commencement works on the 100MW plant meant for the Gwanda solar project.

 Signs of hope for the project’s take-off started showing again in July 2020, when then Energy minister Fortune Chasi said the government was going to re-establish plans to run the Gwanda solar project, after Intratrek had vowed to deliver the first 10MW within six months.

The project has been in limbo since then.