Independence of the NPA and due process questioned in the Tendai Biti case
Opposition MDC Alliance party Vice-Chairperson Tendai Biti was charged for contravening the
Electoral Act after he allegedly unlawfully and unofficially announced the 30 July presidential
election results. On 10 December Biti’s lawyers succeeded in having Prosecutor Michael Reza
removed as the lead prosecutor on the basis that he was biased and unsuitable to preside over his
prosecution. This was after the prosecutor reportedly sent a message to Thabani Mpofu, the head of
the Special Anti-Corruption Unit in the President’s Office, criticising the Magistrate’s ruling allowing
media practitioners to live stream trial proceedings. The message which was shown in court read;
“Cde Mpofu, it’s Reza, how are you. Another strange ruling by the magistrate trying Tendai Biti.
They applied for live streaming of the case, with cameras and journalists in court and proceedings
beamed all over the world. She has just agreed to that without authority of her boss the Chief
Justice. She is either very brave or very stupid or both kkkkkk.” Biti’s lawyers charged that Reza’s
conduct and message was contemptuous of the ongoing court proceedings and should be
investigated by ZRP officers and also insinuated that judicial officers lack independence as they
should consult the Chief Justice before passing any decisions. Biti also challenged the improper
splitting of charges in the case, as well as the jurisdiction of the court on the basis that he was
unlawfully brought into Zimbabwe from Zambia in violation of the deportation and asylum laws of
Zambia and of an order of court issued by the High Court in Zambia in breach of international law
regarding the extradition of people facing offences of a political nature.
The Magistrate granted an application allowing accredited media practitioners to carry out live
streaming of court proceedings during Biti’s trial. Prior to that the court on 15 November 2018 had
allowed Tendai Biti to get his passport which had been surrendered as a bail condition, to attend a
crucial continental meeting in Uganda after vetoing a decision by Acting Prosecutor-General
Kumbirai Hodzi, who had turned down his request for the temporary release of his passport to
allow him to travel.
demonstrate and petition enshrined in the
Constitution.14 The Court found that the blanket
ban in section 27 was unconstitutional because it
had a dragnet effect, which completely nullified
the fundamental right to demonstrate and
petition. Few people were in fact charged under
POSA. Most were charged under the Criminal
Law (Codification and Reform) Act, which Act
still has constitutionally offensive provisions.
Primarily, the offences of public violence (section
36), promoting public violence (section 37) and
15
subversion (section 22) were invoked. Another
often abused law was section 33 of the Criminal
Law (Codification and Reform) Act [Chapter
9:23], which carries the offence of undermining
the authority of or insulting the President. This
provision stifles freedom of expression,
legitimate feedback, fair comment and truth-
Problematic Laws
During 2018, the Access to Information and
Protection of Privacy Act (AIPPA) and Public
Order and Security Act (POSA) remained in
statute books in their repressive nature. This
appeared to reflect absence of political will for
genuine reforms to ensure that the promises of
the Constitution are enjoyed by all and sundry.
Instead, the culture of cutting back on the
Constitution was still prevalent, through
legislation, court rulings and undemocratic
practices. In October the full bench of the
Constitutional Court per Justice Rita Makarau
declared that section 27 of POSA which granted
wide powers to the police to ban demonstrations
for periods of up to one month in the interests of
the preservation of public order was an
unjustifiable infringement on the right to
14. Democratic Assembly for Restoration and Empowerment & 3 Ors v Saunyama N.O & 3 Ors CCZ 9-2018.
15. Section 22 violates the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights
(both of which Zimbabwe is a party to), including the rights of persons to freedom of opinion and expression (Article 9 African Charter
on Human and People’s Rights; article 19 ICCPR), freedom of assembly (article 11 ACHPR; 21 ICCPR) article, freedom of association
(article 10 ACHPR; article 22 ICCPR), and the right to political participation (article 25 ICCPR).
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STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018
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