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Main points of landmark Supreme Court Ruling

Main points 29 page Judgment No SC 22/10                                 Constitutional Application 53/09

(1)    JENNIFER WILLIAMS (2) MAGODONGA MAHLANGU v (1) PHATHEKILE MSIPA N.O (2) THE MINISTER OF JUSTICE (3) THE ATTORNEY GENERAL

SUPREME COURT OF ZIMBABWE CHIDYAUSIKU CJ, MALABA DCJ, CHEDA JA, ZIYAMBI JA, GARWE JA HARARE JUNE 4 2009 & NOVEMBER, 26, 2010.

L. Uriri with T Mpofu for the Applicants

legal Summary Supreme Court Ruling Williams- Mahlangu

F. Chimburu, for the Respondents

The court must be able to intervene not only against the direct dictates of the lower court but also against its effects.

In this case it means that the Court has power to restrain the magistrate and the third respondent from relying on the decision of the former refusing the request for referral of the constitutional questions and commencing the trial of the applicants pending final determination of the main application because to commence the trial would tend to negate or render nugatory the judgment of the court on the main application when it is given.

(a)    that the right which is the  subject matter of the main action and which he seeks to protect by means of interim relief is clear or if not clear, is prima facie established though open to some doubt.
(b)    That , if the right is only prima facie established, there is a well grounded apprehension or irreparable harm to the applicant..
(c)    That the balance of convenience favours the granting of interim relief.
(d)    That the applicant has no other satisfactory remedy.

It is the nature of harm which has to be considered and not its magnitude. It is clear that commencing the trial of the applicants before the determination of the main application would itself constitute a violation of the fundamental right to the protection of the law.

The balance of inconvenience test involves the determination of the question which of the parties is likely to suffer greater harm as a result of the granting or refusing of the interlocutory relief taking into account public interest.

The only restriction of the obligation imposed on the judicial officer is the discretion given to him or her to refuse a request for a referral when in his opinion the raising of the question is “merely frivolous or vexatious”

In the  context of s24(2) the word ” frivolous” connotes , in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with  the logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it. The word “vexatious”, in contra-distinction, is used in the  sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation  that it cannot succeed.

The question related to matters that needed serious consideration.

S37 (1) (a) (1) of the Act was not applicable to the conduct of the applicants as constituted by the facts on which they were charged.

Section 13(2) of the constitution authorizes deprivation of an accused person of personal liberty where there is a reasonable suspicion of him having committed a criminal offence.

The Magistrate was required under s13 (2) (e) of the Constitution to take into account the essential elements of the offence and the conduct which, if proved at the trial, would constitute the offence charged.

It is clear that the statute is not intended to be used to punish acts for the commission of which the fundamental human rights to freedom of assembly and freedom of expression are protected under the Constitution.

The peaceful nature of an assembly of people is a fundamental element of the democratic principle of the freedom of assembly as well as the pre-condition for its enjoyment.

The statute is intended to be used to punish conduct which constitutes abuse of the fundamental rights to freedom of assembly and freedom of expression through behaviour or words which are inimical to public welfare. Whilst it does not prescribe advocacy of ideas it does prescribe advocacy of violent action.

A judicial officer faced with the question whether or not to remand an accused person on a charge of contravening s37(1)(a)(1) of the Act must in the analysis of the facts on which the charge is based, bear in mind the national commitment to the principle that the coming together of people in a democratic society to petition for redress of grievances and express views or opinions or discuss political an governmental issues of the day consonant with the peace, security or order of the public, is an indispensable means for the maintenance of the system of representative and accountable government established by the Constitution.

The examination of the conduct for which the applicants were charged with the contravention of s37 (1) (a) (1) of the Act, shows that they were simply exercising their fundamental rights to freedom of assembly and freedom of expression.

Had the magistrate acted in accordance with the requirements of s13 (2) (e) of the Constitution and examined the conduct of the applicants in the light of the offence with which they were charged, he would have found that the applicants had not gathered for the sinister purpose of bringing about serious disturbance of peace, security or order of the public or any section of the public. In singing, dancing, chanting slogans and waving placards with messages that did not incite violence; the applicants used legitimate means of expressing views or opinions on the political and governmental issues of the day.

The applicants were entitled to express disapproval of the political agreement signed by the three main political parties in the country on 15 September 2008.They were also entitled to do what they did to draw the attention of the Government to the grievances arising from shortages of teachers for their children in school at the time. They had a right to communicate their grievances to the people they considered had the right to receive the information.

There was no allegation in the outline of the facts relied upon by the public prosecutor when he applied for their remand, that the conduct of the applicants involved in its nature any direct and obvious danger to the peace, security or order of the  public or any section of the public.

In fact the applicants do not seem to have been arrested for what actually took place at the gathering. What appears to have prompted their arrest was the protect they raised against what they considered was an unwarranted interference by the police with the exercise of their fundamental rights when the later ordered the crowd to disperse.

It does not, of course follow that police should always break up a peaceful assembly even where it has not been authorised. They have discretion under s29 (2) of the Public Order and Security Act [Cap.11:17].

Once that had happened they should have taken into account whether the assembly violated the rights and freedom of others or whether it constituted a direct and obvious danger to the peace.

It is clear, therefore, that what the applicants together with the other members of the gathering did was germane to the purpose for which the fundamental rights to freedom of assembly and freedom of expression are guaranteed under the Constitution. They did all they did in a peaceful gathering whilst preserving their willingness to act in conformity with the law.

2011 a year of protest and response with excessive force says Amnesty

Women of Zimbabwe Arise (WOZA) congratulate Amnesty International on the launch of their Annual Report under the theme ‘leading from the streets’.

WOZA national coordinator is in London, United Kingdom and attended the press conference to launch the report which was launched at the Amnesty headquarters by Secretary General, Salil Shetty.

He said,”2011 was a year of protests where ordinary people sent a clear message that it is no longer business as usual for tyranny and injustice.  Leaders failed to listen and the demands fell on deaf ears, only to responded with use of excessive force. It was a year where dictators were removed but not dictatorships.”

He went on to criticise the United Nations Security Council for their weak and late response when lives of peaceful protestors were at stake.

WOZA was formed 10 years ago to create a platform for women to lead ‘from the streets of Zimbabwe’. Since then Amnesty International have partnered with WOZA to help expose the injustices perpetrated against citizens. WOZA encourage Amnesty to keep watch on Zimbabwe as the nation prepares for a referendum and election which is normally
coupled with an increase in violence. Additionally, WOZA wish to applaud and encourage Amnesty to continue their work in raising the profile of social, economic, civil and political rights in Zimbabwe.

WOZA leader Jenni Williams has said, “The way the regimes have responded to peaceful citizens all over the world is not new to us as the Zimbabwe Government has practiced such repression on us. Reading the Amnesty annual report drives home a realisation that citizens are fast losing hope in election processes as a vehicle to bring change. What citizens cannot seem to do with the ballot they are trying to do by protests or by ‘voting with their feet’. I think it was Robert Mugabe who once paraphrased Malcolm X by saying, “we won our independence by the ballot and will defend it by
the bullet.” The next election in Zimbabwe will be a very contested election and we hope Zimbabweans will not have to dodge the bullet to defend their ballot.”
http://www.amnesty.org/en/news/report-2012-no-longer-business-usual-tyranny-and-injustice-2012-05-24

Solidarity with Swazi comrades and Marikana victims families

Women of Zimbabwe Arise (WOZA) fully associate themselves with the statement made at the close of the Zimbabwe Learning Exchange Meeting Declaration of 28 August 2012 convened by the Action Support Centre. WOZA add their call for the opening up of space for the work of civic society as we move towards finalisation of our constitutional reform process.

We also call on the King Mswati and the Swaziland Police to allow all citizens the full enjoyment of freedoms of expression and assembly during the upcoming Global Week of Action on Swaziland.

The time has come for the people to people solidarity and WOZA members commit to active solidarity to their sisters and brothers in the region. It is in this spirit that we express our condolences to the families of those who lost their lives in the Marikana tragedy.

WOZA adopted a mandate to practice peaceful protest as human rights defenders committed to the principles of non violence and universality. For the last 10 years we have conducted protests on a range of issues, including partnering with the Zimbabwe Congress of Trade Unions in their right to a decent wage. The Zimbabwe Republic Police response to the peaceful protests have been beatings, arrests torture and our activists are persecuted on a daily basis for their peaceful protest mandate.

As victims of police brutality and use of excessive force, WOZA are especially concerned that police officers within the region must be trained in response to protest situations and in the case of Marikana, in how they respond to violence without killing the innocently non violent.   We call on South African Police Commissioner general Riah Phiyega to follow the Southern Africa Regional Police Chiefs Cooperation Organisation protocols. And further probe the role played by the two rival unions in this tragedy. The articles therein call for respect for human life and the use of force and torture. Article 8 calls for a police force that the public can trust and police officials who can be above reproach. These principles have been called into account by the wanton shooting of the miners. Additionally we wish to raise our concern at the national prosecuting authority bringing of murder charges against miners in custody.

WOZA wish to ring very loud alarm bells that the current events in South Africa could set unfortunate precedents for the repression of the right to expression and assembly. We also wish to remind South African of the inspirational examples they have shown us in removing apartheid through the use of non violent protest and boycotts.  It is unfortunate that some of the miners were carrying weapons that saw the initial slaying of 14 people including 2 police officers but still we do not condone the reaction of the police officers in the subsequent events. Some of these events inspired the formation of WOZA and its work to build a movement of committed social justice activists.

We pray our message will be heard by South Africans and other Southern African Development Community leaders and citizens.

Zimbabwe Learning Exchange Meeting Declaration  28 August 2012
A strong representative delegation of organisations from Mozambique, Swaziland, , South Africa and Zimbabwe and from respected organisations such as the ACTION Support Centre, Benchmarks, COSATU, Grace to Heal, Foundation for Socio-Economic Justice, UMSA, PROPAZ, , Restorative Justice, SCCCO, TUCOSWA, SUDF, WOZA, YIDEZ and ZCTU met in Harare, from 22-23 August 2012. The interconnections between civil and human rights and the rights of workers are at the centre of our collective purpose.

We deliberated on “Building and Strengthening People-to-People Solidarity in the Region”, focusing on analysing the Zimbabwe Global Political Agreement, reflections on the constitution making process, the implications of a contested constitutional referendum and an election process without a clear constitutional framework in place. Lessons were drawn from these discussions and were further strengthened through an analysis of the Swaziland crisis, including sharing insights and strategies for strengthening the Swaziland Mass Democratic Movement and assessing the role of civil society in socio-economic and political issues in the region.

The tragic events at the Lonmin mine in Marikana, North-West Province, South Africa, overshadowed the learning exchange and served to remind us of the indivisibility of our struggles for freedom and the deep structural causes of violence that affect all of us across the continent.

Acknowledging our past efforts and recognising the need to strengthen our collaborative intention to build a culture of solidarity in seeking to address the challenges we face in the SADC region:

We resolve to:
Invigorate our efforts to end the abuse of the rights of citizens, the marginalisation of people from decision making and unaccountable leadership, the misuse of public funds, and all forms of autocratic and militarised behaviour, particularly in Zimbabwe and Swaziland. We pledge our solidarity with the struggles of the people across the region and commit ourselves to finding ways of building unity and cohesion between progressive forces.

We also send our condolences to the families of those who perished and were injured in the tragic event in Marikana. Those who are found to be responsible for the tragedy must be held accountable. The events at Marikana are also symbolic of the deeper tensions in our society and will require a concerted collective effort in support of fundamental transformation.

We call on SADC heads of states to:

  • Urgently include civil society voices in the current ongoing efforts to resolve the Zimbabwe impasse and to respect the views of citizens who are participating in the constitution making process.
  • Respond immediately to the impending constitutional stalemate between the principals in Zimbabwe and persuade intentional spoilers to follow the process of the GPA and walk with Zimbabwe in ensuring a constructive outcome to the Constitution making process and a level playing field for an election outcome that is accepted by all parties.
  • Seek active ways of involving civil society in SADC decisions and work with civil society to make existing structures more effective in serving the collective voice of civil society, including the SADC Council of NGOs.
  • Immediately deploy the SADC Technical Team to work alongside the JOMIC and seek ways of expanding this team to support the Zimbabwe Electoral Commission.
  • Ensure the full implementation of the GPA guidelines and investigate how security formations such as the Joint Operations Command are undermining and circumventing dialogue processes.
  • Work together with JOMIC and civic monitoring groups to ensure the creation of an enabling environment towards free and fair elections.
  • To recognise the severity of the Swaziland crisis and work urgently to establish frameworks that facilitates the protection and respect of human rights and the democratisation of the Swaziland governance system.

We call on all progressive forces worldwide to support the 2012 Global Week of Action on Swaziland organised by the Swaziland Democracy Campaign and progressive Movements in Swaziland (3-7 September 2012) under the theme “A Call for Multiparty Democratic Elections and A People’s Government Now”!

Finally we express our solidarity support for the associated call for the:

  • Immediate unbanning of all political parties, freeing of political prisoners, and the return of all exiles.
  • Right to free media expression and an independent judiciary
  • Genuine and all -inclusive political dialogue to end 39 years of Tinkhundla parliament sitting) misrule.
  • End to the corrupt, undemocratic royal Tinkhundla regime and put in place a process towards a democratic and all-inclusive interim government to prepare the ground for democratic elections. Including mass civic education to empower especially rural population on their rights and importance of their participation in building a democratic Swaziland.
  • Introduction of economic recovery plan to address poverty and hunger, driven by a democratic government and civil society.

Free at Last!

WOZA leaders were released from custody on orders from High Court Judge Maphios Cheda on 4thOctober 2011.

Jenni Williams and Magodonga Mahlangu wish to thank mem, friends and supporters for the encouragement and prayers that helped them to survive their 13 days in custody, 2 in Bulawayo Central and 11 in the Mlondolozi prision, part of the Khami prison complex.

They will appear in Bulawayo Tredgold Magistrates Court at 8am tomorrow, 6th October 2011 and expect to be remanded to a further date. see

http://wozazimbabwe.org/?p=994 and   http://wozazimbabwe.org/?p=976 and  http://wozazimbabwe.org/?p=983

Seven WOZA members remain in custody

Seven WOZA members remain in custody in Bulawayo tonight. Reports that 20 members were arrested were inaccurate as the women seen entering Bulawayo Central Police Station were not WOZA members. The members that remain in Bulawayo Central are all women, including Jenni Williams, Magodonga Mahlangu, Angeline Karuru and Rosemary Siziba.

The lawyers in attendance have seen the group but police are refusing to discuss possible charges at this stage. Although the five arrested at the scene of the demonstration were all beaten during their arrest, the extent of their injuries is not clear. Food has been allowed in this evening.

Seven members have been treated for injuries they received from beatings but we are still waiting for reports on their injuries.

It also appears that in the immediate aftermath of the demonstrations, a police van was seen driving around central Bulawayo with a loudhailer telling citizens not to pick up the WOZA flyers and placards. This is particularly interesting as a group of approximately 20 riot police were seen avidly reading the placards and flyers left by the demonstrators.

Concerns remain for the welfare of those in custody, particularly in the current state of repression and in the light of the threats made against Williams and Mahlangu by members of the Zimbabwe Republic Police. Please call Bulawayo Central on +263 9 72515 / 61706 to remind them that the world is watching.

Members appear in Court and remanded to 21Feb

TEN members of Women and Men of Zimbabwe Arise (WOZA) appeared in Magistrates Court one at 9:30am before Magistrate Vivian Ndlovu. Those appearing include national coordinator Jenni Williams.

The Defence were represented by Mr Jamela of Zimbabwe Lawyers for Human Rights and Nikiwe Ncube.

The matter was in court for Trial but no state papers had been served on the defence team so they could prepare for Trial. Mr Jamela summarised the activist complaints against the police and put the state on notice that at the next appearance on 21 February 2012, they will submit a written application for refusal of further remand. Jeremiah Mutsindikwa appeared for the state.

The charges come under the Criminal law (codification and reform) Act [chapter 9:23] Act 23/2004 Section 46 Criminal nuisance’ Acts constituting criminal nuisance – 2. Any person who – (v) 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; shall be guilty of criminal nuisance.

These charges seem to contradict the Supreme Court Ruling obtained in 2012 by Williams and Mahlangu. The essence of the ruling is covered in the main points available at this link on the WOZA website. http://wozazimbabwe.org/?p=1181

Court appearance by members known as the ‘Shosholoza for Love 10’

Members of WOZA arrested on 7 February 2012 appeared for the 15th time in Trial Court One, Tredgold Magistrates Court, Bulawayo. The appearance was for delivery of a ruling regarding an application to take the matter to the Supreme Court submitted on 22nd March 2012 after the Magistrate Vivian Dube refused to discharge the matter. Magistrate Vivian Dube was once again absent and stand-in Magistrate Tansy Dube did not issue the ruling but remanded the activists to 20 June 2012.

Defence Lawyer Lizwe Jamela of the Zimbabwe Lawyers for Human Rights will submit a complaint as the accused have appeared 5times expecting a ruling only for the matter to be remanded. The application is being ignored thereby denying the accused access to the Supreme Court. To make matters worse the Supreme Court has already ruled on similar charges which were protest related. This application was taken by Williams and Mahlangu for a 2008 protest arrest and the ruling held that there had been a deprivation of Williams and Mahlangu right to liberty. Also in that application Magistrate Msipha had denied the right to access the Supreme Court. Magistrate Vivian Dube by her continually delaying the response to the ruling is also effectively denying the activists the right to approach the Supreme Court.

The application lodged in March 2012 seeks to ask the Supreme Court to once again determine the activists’ constitutional right to freedoms of association, assembly and expression, right to liberty and protection of law. It also makes an argument that the application is not frivolous and vexatious despite it having to be taken a second time.

The application draws on international cases such as the Suffragettes movement in the United Kingdom and the United States Civil Rights movements. Activists taking legal challenges for arrests during those periods also made the arguments that public spaces such as roads and parks are spaces for the public expression. The Supreme Court will be asked to assist in reconciling the right to expression and assembly with the argument over the need to protect public order. The application also addresses the role of police in a protest situation citing their power of discretion to disperse the protest rather than arbitrarily arrest the activists. If the application is successfully the activists will be removed off remand for the matter to be determined in the Supreme Court.

Williams and Mahlangu are also facing separate charges for Kidnap and Theft and will reappear in this court for a remand hearing on 30 June 2012. A review for a review of Magistrate Sengweni refusal to discharge the activists is before the High Court. State witnesses provided contradictory testimony and disowned their police prepared statements. The review application also seeks arbitration of court records which indicates the reverse of witness testimony in court under oath. The matter cannot be set for hearing in the High Court as there are backlogs in the magistrates’ court typing pool.

Meanwhile Jennifer Williams and 3 others arrested in April 2010 and kept in horrific conditions in Harare Central Police station for 7 days have taken an application to the Supreme Court regarding the conditions in these police cells. The matter has been set down for hearing on 14 June 2012.

Note: Shosholoza for love was the theme under which WOZA members marched on 7 February 2012. Shosholoza is a word which means ‘push with pressure’ a term used to describe WOZA’s marching mandate.

WOZA application to magistrates court to go to Supreme Court 23march2012

 

Constitutional Draft content victory ‘sweets’ cannot be stolen from our mouths

Women of Zimbabwe Arise (WOZA) members express concern the once again the word ‘election’ dominates the political rhetoric and that the Copac draft has once again become hostage to political posturing and egos. WOZA call for the immediate resumption of Constitutional reform processes leading to the second all stakeholders’ conference and the setting of a date for the referendum.

WOZA members provided their leadership with a mandate to begin a vote ‘yes’ campaign if their main requirements were included in the draft. Members also provided a mandate to conduct a boycott campaign for any elections conducted without significant reforms in place.

In June 2012 WOZA members were consultation on political and constitutional developments. Members estimated that they had lost confidence and trust in the MDC. Some members measured their level of trust at 45%. A result confirmed by recent Freedom House and MPOI surveys. Both MDC parties in the government, political analysts and academics must realise that there were no ‘undecided’ people, no people ‘fearful’ of disclosing their support in this sample. The people in the WOZA consultation were ordinary women – brave and blunt and giving the opposition a 45% trust rating.

As the MDCT launch their ‘YES’ campaign, they must be warned that WOZA is watching and listening. WOZA challenge the MDCT and MDC to push for additional reforms on the age limit for presidential candidates and further reduction of presidential powers. Additionally WOZA suggest the removal of the word ‘unitary’ in the preamble which describing the state and insertion of the word ‘devolved’.  Zimbabweans were clear that they no longer want a highly centralised unitary state.

Members also warned about the tendency of President Robert Mugabe to back track on agreements and this too has come to pass with ZANU PF refusing to respect their own signatures on the Copac draft and have practically rewritten their own draft. Once again ZANU PF pretends national interest whilst telling blatant lies.

WOZA members see their views in the draft and will not allow ZANU PF to misrepresent our views. WOZA have campaigned tirelessly for reforms and the victory ‘sweets’ cannot be stolen from our mouths.

The ‘victory sweets’ are represented by this content in the Copac draft.
a)    Free education and adult basic education.
b)    Gender equality specified in many sections and the removal of restrictions by traditional culture.
c)    President, cabinet, ministry permanent secretaries and all commissioners limited to two five year terms limit.
d)    A devolved system of government with some forms of elected officials and specified resource control.
e)    A more transparent sharing of power with the presidential running mates system.
f)    We have proportional representation which does bring a more democratically implemented.
g)    We got more democratic electoral systems and a Zimbabwe Electoral Commission with extended powers.
h)    Total abolishment of the Death penalty for women.
i)    Most political leaders in legislature, civic servants, security sector must no longer involve themselves in politics or be impartial.
j)    A National Peace Commission that will deal with transitional justice issues.
k)    A National Prosecuting Authority and reduced power for the Attorney General.
l)    An independent complaints commission so we can hold security sector accountable.
m)    An expanded bill of rights, including social, economic, political and cultural rights.
n)    The right to demonstrate and petition and rights to liberty more clearly defined.
o)    A non-discrimination clause and 16 official languages.
p)    Domestication of international instruments to which Zimbabwe is a signatory.
q)    A  Constitutional and Electoral Court.

WOZA demand the immediate finalisation of second all stakeholders’ conference dates.  A transparent and accountable system to call for the second all stakeholders conference participation of all sectors of society and provision for inclusion of stakeholder input.

Members are also unhappy with the manner in which the Zimbabwe Republic Police continue to disrupt organisation activities and letters of complaint delivered to the police and to the Joint Operating and Monitoring Committee (Jomic) remain ignored. (See letter of complaint which is attached) WOZA complain of police harrasment ZRP Jomic

We demand that cabinet summon the Police Commissioner and instruct him to allow full and unfettered peaceful meetings and protests as an advance of section 4:24. This section is necessary part of the referendum preparation phase civic awareness work. If he is not prepared to allow citizens this space then we call for his immediate dismissal.