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Members arrested, beaten and 11 dumped in a cemetery out of town

Medical UPDATE – One member has a fractured hand, an injury from a baton stick. Three members lost their shirts which were torn and tatteredafter blows from the baton stick wielding police officers.

WATER shortage protests continued in Bulawayo with 57 members arrested and beaten. The first edition of the protest began at 11am targeting the Council administration Tower block. A squad of 4 Riot Police disrupted the peaceful protest and surrounded 35 members. After 15 minutes senior police officers, one identified as the Controller, arrived and engaged the group announcing that he was ‘driving them off’. He was semi professional and no one was beaten or taken them into custody.

As midday struck 5 additional protests began separately all intending to converge on the Government complex. The first protest reached the Mhlahlandlela complex but a green truck carrying the reaction squad with 12 Riot Police. They quickly arrested 11 members, 9 women and 2 men and took them across the road to the Drill Hall, placing them under guard at 12:15.

The same vehicle then drove to the intersection H. Chitepo Street and 10th Avenue. The police officers disembarked to beat members were marching towards the complex. They indiscriminately beat even passes by. As they beat people these officers loudly shouted insults and violently beat anyone in their path. They shouted tribal and gender obscenities referring to the Ndebele people and calling the women prostitutes.

The second 11 were then arrested by the same squad, one referred to as Mukoshi who said he did not care if the activists knew his name. He also said with great support and approving laughter from his colleague, ‘this country was liberated by blood and only those who spilt blood can be the ones to talk.’ He went on to ask them to answer his question in the Shona language – Do they have their own dams, why are they asking for water.

The 11 were then forced to sit in the truck and driven to Bulawayo Central. When they got there and as they were disembarking, Lizwe Jamela of Zimbabwe Lawyers for Human Rights chief law officer was present. The officer commanding Bulawayo Chief Inspector Rangwani  arrived and shouted at the officers asking them what they had brought these women to the police station. He said take them back to where you got them. The driver of the police truck in the hearing of Lizwe Jamela said he would not take them back to Drill Hall but would drive them into the bush and dump them. He promptly drove away toward Victoria Falls with the lawyer in pursuit dumping them at a cemetery out of town. Four members are being seen by the doctor and many others are being attended by the WOZA medical support triage. The first 11 members arrested have also since been released so no members are left in custody at this time.

WOZA have argued that there is a tribal element of the manner in which police in Bulawayo treat WOZA members and this has today been further confirmed by the insults of all the Riot Officers. The women were called prostitutes and told not to speak to each other in the Ndebele language as the Ndebele people were all killed off by Gukurahundi in the 1980s. please see the list of demands http://wozazimbabwe.org/wp-content/uploads/2012/11/Woza-Moya-WATER-November-2012.pdf

WOZA part of zimdecides

Released by: Bulawayo CSOs Zimbabwe Situation Room
Contact: Debra Mabunda: +263 772 217 052 and Jenni Williams: +263 772 898110

Press Statement: Bulawayo CSOs Zimbabwe Situation Room Launch
Zimbabwe elections have a history of being dynamic in that one can never predict how they will be conducted or whether they would be free and fair.
It is in this view that the Zimbabwe CSOs decided to come together and utilize a tool which has been used by the West African countries termed the ‘Situation Room’. This tool has been tried in Nigeria, Sierra Leone and Senegal with positive results.
The principles of this tool are:
– It involves all CSOs in the country or at least as many as possible
– Its reports are ongoing. They are not about results, but about the whole process; pre-, during and post elections
– It has a coordinating team in a room. Response is immediate where necessary and possible (real-time).
– It utilizes scientific deployment of observers and monitors
– It is pro-active in crisis management work with other people on the ground to ensure all areas and issues are covered and addressed i.e. faith-based organisations, Government including ZEC, media etc
– It collects, verifies and act on data in real time

Zimbabwe Situation Rooms will be in Bulawayo and Harare to ensure coverage of the country as widely as possible and ensure that issues and incidents are dealt with at the greassroots level in real time.

The Situation Room will be issuing statements and briefs at least twice a day.
The coordinating team will be at the Holiday Inn. It will utilize all forms of communication including social media but will only issue data that is factual and verified.

The Situation Room is open and welcomes other people who have information or seek information about the elections. Members of the public are also welcome to phone or send messages on issues that are of concern to them, both good and bad.

For more information please call Civil Society Representatives on the following numbers;
Public Hotlines: 08080082, 08080034, +263 772 177 077
Visit us on: www.zimdecides.org

African Commission for Human and Peoples Rights accept WOZA case

Women of Zimbabwe Arise (WOZA) has received formal notification from the African Commission on Human and People’s Rights (ACHPR) that a recent communication, outlining continued human rights abuses perpetrated against WOZA members, was accepted during the 14th Extraordinary Session held from July 20-24, 2013 in Nairobi, Kenya. By accepting the communication, the ACHPR requests that the Zimbabwean government respond to the rights violations included in the document.

The communication number 446/13 was taken by Jennifer Williams, Magodonga Mahlangu, and WOZA against the Republic of Zimbabwe. Zimbabwe Lawyer’s for Human Rights (ZLHR) and the Washington-based Robert F. Kennedy Center for Justice and Human Rights (RFK Center) now have 60 days to argue for admissibility of the case.

The nature of the complaint is that the Republic of Zimbabwe – which ratified the African Charter on Human and People’s Rights on May 30, 1986 – has routinely violated WOZA’s right to peaceful protest and assembly. The communication, which was initially submitted in April 2013, documents a lengthy series of arrests, beatings, arbitrary detentions, and general physical harassment of WOZA members for over a decade between 2003 and 2013.

Formed in 2002, WOZA is a mass civic movement with a countrywide membership of approximately 85,000 citizens. WOZA lobbies and advocates on issues pertaining to women and their families in Zimbabwe and participates in a range of peaceful campaigns, both locally and internationally. WOZA’s principal aim is to mobilise Zimbabweans, particularly women, to demand social justice and educates its members about their rights and freedoms and encourages them to fully participate in important civic processes. WOZA conducts civic education programmes and teaches its members nonviolent ways to advance and protect their basic human rights.

Natioinal Peace and Reconciliation Bill Commentary

The following Bulawayo Organisations having met on 27 January 2016 to set the minimum standards regarding the content, process and framework for national peace and reconciliation Zimbabwe. The organisations will therefore urge government to amend the NPR Bill to give effect to the provisions of Section 252 of Constitution.
The Organisations have noted that the Bill falls short of the minimum standards (International Best Practise) .The Following were noted:

• The Constitution establishes an NPRC that is accountable to Parliament; the Bill proposes an NPRC that is accountable to the Executive through the Minister of National Healing, Peace and Reconciliation.
• The Constitution protects the Security of tenure of Commissioners while the Bill seeks to give the President Powers to terminate the services of the Commissioners at will.
• The Constitution empowers the Commission the power to recruit its own staff, while the Bill seeks to empower the Minister to appoint staff from the Civil Service to work as Secretariat staff of the Commission thereby compromising the independence of the Commission.
• The Commission is not independent .The Minister decides the meeting place,dates and time of the Commission (First Schedule section 6 (10).Section 8(7) gives Minister power to stop disclosure of evidence by issuing a certificate barring disclosure .This defeats independence as per section 235 and undermines the truth telling section 252 (c)the Minister has power to bar the truth from being told.

• In terms of Section 252 the mandate of the NPRC is to deal with the past in a manner that facilitates the following:
a) Ensuring post conflict justice ,healing and reconciliation
b) Truth telling about the Past
c) Making of amends and the provision of Justice
d) Peaceful resolution of disputes

The wording of the Bill seems to be opposite in fact its roles seem to be duplicating the Human Rights Commission.
• The Constitution does not provide any term limits for Commissioners .Section 237(3) provides that the conditions for the removal of Judges shall apply to members of independent Commissions .However the Bill Provides in Section 3(1) that the term limit is Five Years or Commissioners and the President can either appoint a further 5 Year term or decline .This takes away the independence of the Commissioners as their further appointment is subject to Presidential approval.
• The NPRC Bill sections 10(1) and 11(1) gives the Minister power to assign current serving Civil Servants to work as Secretariat for the NPRC. International Best practise recommends that such commissions best function with limited government interference and that there should be diversity in terms of ethnicity and professions from different backgrounds and disciplines such as Legal Experts, Researcher ,Social Workers, Investigators ,Scientists and many others .The recruitment of the Civil service will affect the Integrity of the Commission .
• It has been noted that why most Independent Commissions have not been effective because of resource starvation .Notably has been the Anti Corruption Commission. The NPRC Bill‘s main Weakness has been that it gives the Government the power to control the NPRC’S financial Resources .Section 14 (1) (c) gives the responsible Minister to approve donations to the NPRC .The Financial autonomy of the Commission is lost.
• The NPRC makes the Commission to be accountable to a Minister yet the Constitution is Clear that the Commission is accountable to Parliament .Section 235 makes it Clear that Independent Commissions are accountable to Parliament. The Bill makes the Commission almost like a Ministerial Taskforce and the Commissioners dependent on a Minister .The Constitution envisages that the Commission reports to Parliament through the Minister. But the Bill makes it look like that the Commission reports to the Minister who may Cherry pick what he can share with Parliament.
• Section 252 lists the functions of the Constitution .The Bill in Section 6 has a section titled the Functions But does not broaden the functions. As Best Practise its always expected that subsidiary Legislation should always be expanded to give effect to the Constitutional provisions.
• Section 8(13) of the NPRC makes some reference to witnesses and Victims and guarantees of safe and impartial space .The Bill is not exhaustive on the specifics of the protection mechanisms to guarantee safety of would be witness and victims .It does not spell out relevant Psycho Social mechanism available to assist witnesses and
• Certain provisions of Bill create Legal Bureaucracy. Section 8(5) allows the alleged Perpetrator to be represented by a lawyer this creates room for justice for the rich who can get away with offences on legal technicality as the Commission becomes more of a Court.

Endoresed by
1. Abammeli
2. Bulawayo Progressive Residents Association (BPRA)
1. Bulawayo Vendors and Trader’s Association
2. Basilwizi Trust
3. Christian Legal Society
1. EWF
2. Iibhetshu likazulu
3. National Youth Development Trust
4. PRIZ
5. Radio Dialogue
6. Skills and Technologies Hub Institute
7. South Western Region Gender Network
8. Street Wise Informal Traders Association (SWITA)
9. Victory Siyanqoba
10. Women’s Institute for Leadership Development (WILD)
11. Women of Zimbabwe Arise (WOZA)

98 members arrested in Harare today

98 members of Women of Zimbabwe Arise (WOZA) and Men of Zimbabwe Arise (MOZA) were arrested at noon today whilst protesting the continued harassment of and violence against human rights activists at the hands of the Zimbabwe Republic Police (ZRP).

The activists were arrested Parliament and were made to sit in Africa Unity Square for several hours before being moved to Harare Central Police Station. Human rights lawyers are in attendance. It is still unclear what charges are being brought against the group.

More than 250 activists took part in the protest march through central Harare. This action follows peaceful street demonstrations in Bulawayo, Harare and Mutare last month on the same theme.

WOZA recently launched a report on the political violence perpetrated against its members during the last few years. A copy of this report can be found below.

More information will be released as it becomes available.

WOZA members beaten in the streets of Bulawayo on International Women’s Day

Over 1,000 members of WOZA and MOZA marched through the streets of Bulawayo today to commemorate International Women’s Day. The peaceful protesters, who were carrying balloons, were met by riot police after four blocks and viciously beaten. Over 50 members received medical attention for injuries caused by the assault.

WOZA in the streets of Bulawayo on International Women’s Day, 8th March 2008The aim of this march was to exhort Zimbabweans to stand up for their children in these times of extreme hardship and to encourage people to vote in the coming elections. As they marched, the demonstrators distributed flyers urging people to inform themselves of the policies and track records of the candidates running in their areas and to choose leaders who will deliver a socially just future, regardless of their political affiliation. The group also carried balloons that carried the message – Stand Up for Your Child.

As the procession neared the Chronicle offices, the dispersing point, a police officer known to WOZA, approached Jenni Williams and asked her to take the protest off the road, to which Williams indicated she would do so at the next intersection, Jason Moyo Street. Before they could reach there, a loud noise that could have been a shot or tear gas was heard, alarming the peaceful activists. Riot police officers then violently set upon the demonstrators, severely beating the two young activists holding the rear banner. They then moved through the procession beating people as they fled.

The women human rights defenders, feeling provoked by the violence they had seen, regrouped and began a second protest before being violently dispersed for the second time. Police then adopted the strategy of moving amongst groups and saying out the ‘woza moya’ (come holy spirit) slogan and assaulting anyone who sang out the reply ‘woza’!

A member from Pumula, Eva Tanyanyiwa, was beaten to the ground by two police officers and lay prostrate before being dragged up and pulled towards the police vehicle where she fainted. When Jenni Williams went to implore the officer to leave the woman alone as she was seriously injured, they arrested her as well. Magodonga Mahlangu then joined the two in solidarity. The trio were driven to Bulawayo Central Police Station being threatened by police officers all the way. On arrival at the police station, the three women had their details taken before being released after 30 minutes by a police officer who said they should go and get Eva treated as she had ‘fallen in the road’.One of the WOZA members injured on International Women’s Day

Eva has serious bruising on her upper arm and lower body. Another women had to have stitches to her neck as she was pushed by a police officer into a stationary vehicle whilst another was pushed into a pole by a police officer, receiving a deep cut across her forehead. Other injuries included a woman who developed a haematoma just above her kidneys as a result of being beaten and many others with deep tissue bruising from being beaten with baton sticks.

This violent response by police negates recent information that WOZA had received that police had been instructed not to arrest or beat WOZA members until further notice; evidence of which has been borne out by the reduction in arrests since October last year. The release of the WOZA leaders after a brief period however does not bear out even more recent information received that the uniformed forces and prison authorities had been briefed to arrest and detain WOZA leaders and deny them bail until after the elections. They had also been instructed to teach the WOZA leaders ‘a lesson they will not forget’ whilst in detention.

Undaunted by these threats, WOZA members decided to continue with their peaceful protest, an act of courage that obviously put them in a dilemma, especially as the news had already been covered by independent media.

WOZA would like to pay tribute to its members that came out into the street today to join events that have been taking place all over the world to mark International Women’s Day, despite recent threats by the Commissioner of Police, Augustine Chihuri, that police will meet demonstrations with the utmost force, including live ammunition. Their determination to stand up for the future of their children with dignity and courage is to be commended and WOZA would like to urge all other Zimbabweans to stand up and be counted.

2 arrested in Bulawayo over weekend; trial of Bulawayo 2 postponed

Two WOZA members, including a 15 year-old girl, were arrested in Bulawayo on Saturday afternoon. They were held for two days by police before being released late last night with no charge.

It appears that ZANU PF members in the area had witnessed some people taking a bag into the house of a WOZA member. They alerted the police who waited outside the house as no one was home. When one of the women went to the house to ask for salt, she was arrested by the four plain-clothed police officers who accused her of being a WOZA member. When the 15-year-old daughter of the house arrived shortly afterwards, she was also arrested. Police then illegally entered the house and confiscated a bag of WOZA flyers.

When the older woman shouted to a neighbour that she was being arrested, she was hit by one of the police officers who told her to keep quiet and not tell anyone, as their being arrested ‘was a secret’. The two were then taken to Pumula Police Station where they were questioned about WOZA leaders, Jenni Williams and Magodonga Mahlangu, both who are currently in Chikurubi Women’s Prison. They were threatened with death if they did not answer the questions correctly. One police officer, a sergeant, also constantly demanded that the young girl have sex with him and threatened to have her sent to prison if she refused. She however continued to resist, saying that she would rather die in prison than get disease.

Both were questioned for several hours. The 15-year-old girl was finally released at 2am but was told to return to the police station in the morning. She was accompanied back to her house by two male police officers who continued to pressure her to sleep with them. The other woman was kept in the charge office at Pumula Police Station and made to sleep handcuffed to a pole, apparently because she was a high flight risk.

The questioning of both women continued in the morning. When a lawyer tried to gain access to them, he was turned away and told that he could not see his clients without the permission of Law and Order officers from Bulawayo Central Police Station. The two were taken to Bulawayo Central in the afternoon where they were questioned in the presence of their lawyer. Both were released around 7.30pm without charge and ordered not to tell anyone in their area that they had been set free.

Police went back to the neighbourhood in the afternoon however and searched the house of another woman whom they accused of being a WOZA member. They did not find any WOZA materials and left. They have threatened to search every house in the neighbourhood however as they say that the entire area is obviously WOZA.

Meanwhile, the trial of two other members, Trust Moyo and Cynthia Ncube, on charges of distributing materials likely to cause a breach of the peace, has been postponed to 8th July.

Free Williams and Mahlangu appeal

Nine WOZA members released; two face charges of criminal nuisance

ON Saturday 16th, police officers released the nine WOZA members who had been in detention since Wednesday night. Two members, Samukeliso Sibanda and Jema Gama, were asked to report to the police station this morning (Monday).

Upon arrival, the two were advised that they were to be charged with being a ‘public nuisance’ under the Criminal Law (Codification and Reform) Act. They were then taken to the Magistrates Court where they appeared before Magistrate Charity Maphosa. The defence lawyer from Zimbabwe Lawyers for Human Rights advised that they plead guilty, which they did. The magistrate will deliver a ruling at 11:15 on Tuesday 19 August 2008. The charge normally carries a fine.

Whilst the two women appear in court on the 19th, WOZA will launch a report on the trauma experiences of its members in Johannesburg, South Africa, entitled ‘Counting the Cost of Courage: Trauma Experiences of Women Human Rights Defenders in Zimbabwe’.

WOZA take to the streets of Bulawayo on Valentine’s Day

WOZA sit down during their Valentine protest, Bulawayo

WOZA sit down during their Valentine protest, Bulawayo

Members in Bulawayo took to the streets on Saturday 14th February, three days after the swearing in of the new government and one day after the swearing in of the new Cabinet. At least 800 members took part in the peaceful proceedings, urging Zimbabweans to let love light the way.

The peaceful Valentine’s protest had four different starting points. The plan was for all four groups to meet at a central point and process together to the office of the state-owned Chronicle newspaper. All four demonstrations started on time, despite a heavy police presence in the city centre. One of the first groups was stopped after one block by riot police however. A leader was arrested and the rest of the group told to disperse, which they did peacefully.

The other three groups successfully met up with each other on the corner of 9th Avenue and Fort Street but were unable to process further as they were stopped by riot police. Hundreds of members were held under arrest at this point. They were then ordered by a senior police officer to march to City Hall. As the group was so large however, and the number of police escorts relatively few, many were able to slip away as they walked the several blocks to City Hall. At City Hall, those under arrest were asked to present their identification cards to police and were searched. Anyone found with WOZA materials (including red roses) were sent to Central Police Station. Those that did not have any WOZA items in their possession were released.

As people slipped away from police, they met up with those that had avoided arrest and continued with spontaneous marches through town or else congregated as delegations at the Chronicle. Several groups of WOZA members were seen entering the Chronicle offices to deliver Valentine’s cards, roses and flyers.

It also appears that police did not remain nonviolent. Witnesses reported seeing riot police randomly beating people, some several blocks away from the demonstration. Six young men, who just happened to be passing the offices of the Chronicle, were observed to be beaten by riot police. Chronicle staff members were also seen to be pointing out WOZA members who had delivered Valentine’s cards and roses to their offices to the police, leading to their arrest.

The demonstrations and the chaotic and violent dispersal were witnessed by three South African observers from civic society – Precious Myeza from South African National NGO Coalition (SANGOCO), Sakina Mohamed from the South African Council of Churches and Bunie Matlanyane Sexwale from Khulumani Support Group as part of the Save Zimbabwe Now Coalition. All were present to provide solidarity with WOZA members as it was strongly suspected that police would react oppressively as there is little doubt in the minds of ordinary Zimbabweans that the unity government has not changed anything on the ground.

After all the confusion and chaos of the day, seven WOZA women and three male members of Radio Dialogue, a community-based radio station, who were observing the demonstration, were arrested and spent four nights in custody at Bulawayo Central Police Station. The group were denied access to their lawyer until Monday morning, two days after their arrest.

This was a clear violation of Zimbabwean laws which allow police 48-hours within which to charge people and bring them to court. Police argued that the 48 hour period of detention had not expired but according to the Criminal Evidence and Procedure Act, it starts from the moment of arrest (regardless of whether on a weekend or not) and can only be extended if the 48-hour period expires on a non-court day.

The group were kept in horrific conditions. The cells were filthy with overflowing toilets and on the first night, they were severely overcrowded. Food bins were not emptied regularly so maggots could be seen crawling in the bins. The women were also subjected to invasive strip searches every day. One woman on anti-retroviral treatment had to fight for access to her tablets every day by demanding to see the officer-in-charge as police tried to deny her access to her life-saving medication – on one occasion, she was actually denied her ARVs.

As well as being denied access to their lawyer and being kept in horrific conditions, the group was also subjected to intense pressure to pay admission of guilt fines. Due to this intense pressure and the deplorable conditions in the cells, six of the detained group succumbed and paid fines for obstructing traffic on Tuesday afternoon – the three Radio Dialogue staff, and three WOZA members, two mothers and one member who developed a bad rash.

Four women refused to bow to pressure and insisted on being taken to court. In a surprise twist, they were released from custody later that same evening and instructed to return to the police station the next morning. When they presented themselves the next morning, they were informed by the Investigating Officer, Constable Masawi, that the charges against them were being changed and so the paperwork would need to be prepared from the beginning. They spent the morning at the police station being processed for the fresh charges and were informed that they would be taken to court the next morning.

The new charges were under Section 46 2 (v) of the Third Schedule to the Criminal Law (Codification and Reform) Act – ‘employs any means whatsoever which are likely materially to interfere with the ordinary comfort, convenience, peace or quiet of the public or any section of the public, or does any act which is likely to create a nuisance or obstruction’. They had previously been charged under Section 37 (1b) of the Criminal Law (Codification and Reform) Act – ‘ … performs any action, utters any words or distributes or displays any writing, sign or other visible representation that is obscene, threatening, abusive or insulting, intending thereby to provoke a breach of the peace…’

The four women were finally taken to court on Thursday morning on the fresh charges of criminal nuisance. The prosecutor at Bulawayo Magistrate’s Court refused to entertain the charges however. All four women were therefore unconditionally released after six days of harassment and intimidation by police, four of which were spent in horrific conditions in police cells. In consultation with the four women, WOZA is considering suing the Zimbabwe Republic Police for wrongful arrest and detention.

The names of those arrested were: Barbara Bepe, Patience Mpofu, Praise Mlangeni, Gladys Dube, Shingirai Mupani, Virginia Sithole, and Peace Mthethwa. The three men from Radio Dialogue were Thandazani Nkomo, Zenzele Ndebele and Oscar Hungwe.

The events in Harare and Bulawayo, together with the arrest of MDC Treasurer Roy Bennett on the day of the swearing in of Ministers and the continued incarceration of Jestina Mukoko and other abductees despite court orders instructing their release, are further evidence however that nothing has changed in Zimbabwe. More than ever Zimbabweans need to remain vigilant and participate in defending their rights and freedoms against a regime determined to cling to power despite the platitudes they mouth that they are prepared to share power.

WOZA activists are arrested by police, Bulawayo, 14 February 2009

WOZA activists are arrested by police, Bulawayo, 14 February 2009

Urgent application to Supreme Court in matter of Williams and Mahlangu – for constitutional challenge to be heard and trial to be halted pending appeal

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE

In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

URGENT CHAMBER APPLICATION
FOR THE URGENT HEARING OF CONSTITUTIONAL APPLICATION AND FOR INTERIM INTERLOCUTORY RELIEF PENDING THE DETERMINATION OF THE SAID APPLICATION.

TAKE NOTICE that Application is hereby made for the urgent set down of the Constitutional application filed contemporaneously with this application and filed under case number CONST SC …………/09 and for interim relief pending the determination of the said application as per the draft order attached hereto on the grounds that:
1. The applicants are involved in criminal proceedings in the Magistrate’s court sitting at Bulawayo. The proceedings are being held in terms of section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act.
2. Applicants have in those proceedings taken issue with the section under which they are being charged and in particular the constitutionality of same on the basis of provisions of section 20, 21, and 22 of the Constitution.
3. Applicants have made an application for referral in terms of section 24 (2) of the Constitution in relation to the impugned legislation. That application has been refused without the issues raised having been dealt with.
4. Applicant’s consider that the refusal to refer the matter is wrongful and have approached this court in terms of section 24 (1) as more fully set out in the decision in Martin v Attorney General & Another 1993 (1) ZLR 153 (S). The court has been requested to hold that the refusal to refer the matter was wrongful and it has also been invited to deal with the issues as if they had been referred.
5. The constitutional application is being filed contemporaneously with this application. Notwithstanding the filing of the application and in particular notwithstanding the applicants’ stated intentions that they would file the application, 1st and 3rd respondents have indicated that they still want to proceed with the criminal proceedings. There is a distinct possibility that this court will strike down the impugned legislation in which event the applicants would have been forced to go through void proceedings to their possible detriment as their liberties will continue to be compromised pursuant to void proceedings.
6. In the circumstances it would serve the interests of justice for the Constitutional application to be dealt with on an urgent basis so that the rights of the parties are settled once and for all without any possible prejudice to any of the parties.
7. The matter is urgent because:
7.1 The criminal proceedings are due to commence on the 18th of March 2009 and are so continuing notwithstanding the application that has been filed before this honourable court.
7.2 The complaint of the applicants is that the process under which the proceedings are proceeding is void. There is in the very least merit in the submissions that have been made and it is equitable that the Supreme Court urgently deals with the issues before any conviction results from a process that is highly likely void.
7.3 Should the criminal proceedings commence, then that alone stands as a violation of the rights of the applicants and will cause further irremediable prejudice as liberties will continue to be infringed pursuant to invalid proceedings.
8. It is on the foregoing grounds that the applicants prays that the constitutional application be urgently set down and that pending the determination of the said application, the respondents be interdicted from commencing the trial or otherwise continuing with it in any way.
The Affidavit of JENNIFER WILLIAMS annexed hereto and accompanying Annexures are used in support thereof.
DATED at HARARE THIS 10th DAY OF March 2009.
_________________________
KOSSAM NCUBE & PARTNERS
Applicant’s Legal Practitioners
C/o Zimbabwe Lawyers for Human Rights
6th Floor Beverly Court
Nelson Mandela Avenue/ Cnr 4th Street
HARARE (Mr Nyamurundira)

To: THE REGISTRAR
Supreme Court of Zimbabwe
HARARE
And
To: PHATHEKILE MSIPA
1ST Respondent
Bulawayo Magistrate’s Court
BULAWAYO
And to: THE ATTORNEY GENERAL
Civil Division of The Attorney General’s Office
2ND Respondent
Harare

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

CERTIFICATE OF URGENCY

I HARRISON NKOMO certify that;
1 I am a registered legal practitioner practising as such in the firm of Mtetwa & Nyambirai.
2 I have settled the papers in this matter and certify that the matter is urgent for the following reasons;
2.1 Applicants have filed a Constitutional application before this honourable court
2.2 The application arises from criminal proceedings in the Magistrate’s court in which the applicants are arraigned as accused persons
2.3 The grounds upon which the application have been made are meritorious more particularly in that;
2.4 The refusal to refer the constitutional issues that had been raised was wrongful as the issues are clearly not frivolous neither are they vexatious
3 Notwithstanding the above, the criminal proceedings have not been discontinued with the effect that applicants have to go through proceedings that could in less than a month be declared to be void. No justification has been proffered for this haste.
4 It is for those reasons that I certify that this matter is urgent and ought to jump the queue.
DATED AT HARARE THIS 10th DAY OF MARCH 2009
……………………………………………….
HARRISON NKOMO

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

ADDRESS FOR SERVICE

BE PLEASED to take notice that the Applicants’ Legal Practitioners in this matter are Kossam Ncube and Partners. Applicants’ address for service is care of its Legal Practitioners.
DATED at HARARE THIS 10th DAY OF MARCH 2009.
_________________________
KOSSAM NCUBE & PARTNERS
Applicant’s Legal Practitioners
To: THE REGISTRAR
Supreme Court of Zimbabwe
HARARE
And
To: PHATHEKILE MSIPA
1ST Respondent
Bulawayo Magistrate’s Court
BULAWAYO
And to: THE ATTORNEY GENERAL
Civil Division of The Attorney General’s Office
2ND Respondent
Harare

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

APPLICANT’S FOUNDING AFFIDAVIT

I, the undersigned JENNIFER WILLIAMS, do hereby make oath to state that:
THE PARTIES

1. I am an adult female Zimbabwean and the first applicant in this matter. I am a founder member of the Women of Zimbabwe Arise (WOZA), an organisation which has the protection of women and their rights as its objective. I depose to the facts hereunder in my personal capacity and the facts so deposed to are within my personal knowledge and are true and correct. My address for service is care of my legal practitioners of record.
2. I am also 1st applicant in the main matter in which we seek that section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act (Cap9;23) be declared void, alternatively that our prosecution thereunder be declared as void.
3. Second applicant is Magondonga Mahlangu, an adult female Zimbabwean who is the co-ordinator of (WOZA). I have her authority to depose to this affidavit on her behalf as more fully appears from her supporting affidavit attached hereto. We are jointly represented and for that reason share an address for service. She is also second applicant in the main matter referred to above.
4. The 1st Respondent Phathekile Msipa is cited herein in his official capacity as a Magistrate, and in particular in relation to the criminal proceedings that are being held in the Magistrate’s Court sitting at Bulawayo in which we are involved. His address for service is care of Bulawayo Magistrate’s Court, his seat.
5. The second respondent is the Minister of Justice cited herein in his official capacity as the authority to whom the administration of the Act forming the subject of the main proceedings has been assigned. He is cited as a party who has an interest in this matter.
6. The 2nd Respondent is the Attorney General, who is the public official charged with the duty to prosecute accused persons in criminal trials and who is the prosecutor in the main proceedings referred to above. The Attorney General is cited herein in that official capacity and is also cited in terms of section 24 (6) of the Constitution of Zimbabwe as the relief sought in the main matter necessarily involves the striking down of legislation. His address for service is care of New Government Complex, 5th Floor, Samora Machel Harare.

NATURE OF THE APPLICATION
6. The instant application is one for the urgent hearing of a constitutional application and for interim relief pending the determination of the constitutional application. I must at the outset point out that this application has been made contemporaneously with the constitutional application. The facts upon which the application is based are set out hereunder.

MATERIAL BACKGROUND FACTS
5 Contemporaneously with this application, an application has been filed in this court in terms of section 24 (1) of the constitution of Zimbabwe. The application stems from the criminal proceedings in which we are accused persons. I incorporate the material averments in that application herein as if fully deposed hereto.
6 The application proceeds from a refusal by 1st respondent in the criminal proceedings to refer, to this honourable court questions on whether section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act (Cap9;23) contravenes sections 20, 21 and 22 of the Constitution of Zimbabwe, is liable to be struck off and as such prosecution thereunder constitutes an infringement of section 18 (1) and 13 (1) of the Constitution of Zimbabwe.
7 Notwithstanding the making of the constitutional application, the criminal proceedings have not been stayed or postponed in order to allow the Supreme Court to deal definitively with the issues being raised after which the criminal proceedings could then continue if such is the holding of the court. It stands to reason and is indeed consistent with the requirements of justice and due process that the proceedings in the Magistrate’s court be stayed pending a substantive determination by this court. The proceedings are set to continue on the 18th March 2009.
8 The current state of affairs means that our rights are on the brink of being negated. We have raised issue with the constitutionality of the process by which we are being tried. I am advised that in terms of the law any legislation that is at variance with the constitution is void without further ado. I am however advised that it is only this court that can make such a holding. I however, have the absolute right to challenge the constitutionality of any law and have the like right to have that matter determined without it at the same time compromising my rights. This I have now done and I should certainly reap the benefits of sheltering under the protective provisions of the law.

THE QUESTION OF URGENCY
9. This matter is urgent because:

10.1 We have already filed an application before this court in which we seek a substantive determination on the issues. Such a determination is final and definitive.
10.2 The 1st and 3rd respondents have however, not taken measures to give way to the determination of the matter but have instead indicated that the criminal proceedings will continue or commence as the case may be notwithstanding the constitutional application that has been filed which has the possible effect of invalidating the entire criminal proceedings.
10.3 There is a very real likelihood that the Supreme Court will find in favour of us and do so after our rights would have been negated by the criminal proceedings. I point out that there is no justification for this haste by respondents especially in view of this distinct possibility that the haste would result in our rights being compromised.
10.4 There is no other avenue that applicants could conceivably take, as the position by respondents is not appealable. Further, it is only this court that is seized with the constitutional application and has the mandate to protect its processes.
10. I respectfully submit that we have made out a case for the urgent hearing of the application under the circumstances.

INTERIM RELIEF
11. I also submit that we have shown at the very least, reasonable prospects of success of the application especially in view of the averments in the founding affidavit that have been incorporated herein, a prima facie right in respect of the subject matter of the application, threatened and actual breach and prejudice, the absence of a remedy whether factual or legal under any other law.
12. In any event, I submit that we have shown that it is just and equitable that interim relief be granted pending the determination of the constitutional application which is itself neither frivolous nor vexatious and in fact raises constitutional issues of a national importance.
13. I further contend that there can be no doubt that the balance of convenience favours the grant of the order sought. It is us that will be affected if the criminal proceedings go ahead but respondents will not be affected by their stay.
14. I submit that under the circumstances our interests and indeed the interests of justice would be served if the constitutional application were heard on an urgent basis and that pending it’s hearing the criminal proceedings are stayed.
15. In the context of the above, I would humbly urge the honourable court to require respondents to file their opposition in the substantive application within at most five days of the grant of this application. We would then be required to file our heads of argument within three days of the filing of the opposing papers which will ensure that the constitutional application is at any rate disposed of in less than two weeks.
16. I however, point out that the time limits are just suggestions and we are entirely in the court’s hands on how to proceed. I wish to indicate however, that we would not have any problems complying with any stringent time limits so long a the effect is to make us go through a definitive process that does not raise further constitutional issues in relation to our constitutionally protected rights
17. I accordingly pray for an order n terms of the draft.

THUS SWORN TO AND DATED at HARARE THIS 10th DAY OF MARCH 2009.

_______________
JENNIFER WILLIAMS

BEFORE ME:
_____________________
COMMISIONER OF OATHS

CASE NO. chs S.C 53/09
REF CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENIFFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF ZIMBABWE 3RD RESPONDENT

THE SECOND APPLICANTS’ SUPPORTING AND VERIFYING AFFIDAVIT

I the undersigned MAGODONGA MAHLANGU, do hereby make oath to state that;
1. I am second applicant in this matter and depose to this supporting and verifying in that capacity. The facts hereunder stated are within my personal knowledge and are true and correct.
2. I have read the founding affidavit of Jennifer Williams and associate myself with it. I specifically adopt its contents as if they had been fully deposed hereto.
3. I further confirm Jennifer William’s authority to depose to the founding affidavit on my behalf.
4. I accordingly pray for and order in term of the draft

THUS SWORN TO AND DATE at HARARE THIS 10th DAY OF MARCH 2009-04-27
Signed MAGODONGA MAHLANGU
BEFORE ME: COMMISSIONER OF OATHS

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

DRAFT ORDER

HARARE the day of 2009.
BEFORE the honourable Justice in Chambers
Mr. For the applicants
Mrs. For the respondents

WHEREUPON after reading papers filed of record and hearing Counsel,

IT IS ORDERED:
1. THAT the respondent shall file their notice of opposition and opposing affidavits in the matter under case SC……………/09 within 5 days of this order, if so advised. Applicants shall then file their heads of Argument within 3 days of the filing on the opposing papers.
2. THAT the Registrar of this court shall set down the application in case number CONST SC………/09 on the cause list for Thursday the……….. of …………………………………….2009.
3. Pending the determination of the constitutional application, the following interim relief is granted:
3.1 The 1st and 3rd respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the criminal proceedings which are the subject of the constitutional application filed before this honourable court.
4. The costs of this application shall be in the cause.

BY THE JUDGE

REGISTRAR.