4 June 2008


Media lawyer facing charges of "insulting the president" applies to have matter referred to Constitutional Court

Incident details

Harrison Nkomo

human rights worker(s)

(MISA/IFEX) - Media lawyer Harrison Nkomo, who is facing charges of insulting President Robert Mugabe, has applied to have the matter referred to the Constitutional Court. He is being charged under section 33 of the Criminal Law (Codification and Reform) Act (the code).

Nkomo's lawyer, Beatrice Mtetwa, made the application before Harare Magistrate Gloria Shomwe in terms of Section 24(2) of the Constitution. According to that section, a matter may be referred to the Supreme Court, which will sit as a Constitutional Court where a section of the law, under which the accused person is being charged, violates the Bill of Rights.

Mtetwa argued that the two sections of the code, Sections 33 and 41, under which the accused person is being charged, contravene the provisions of Section 20(1) of the Constitution, which provides individuals the right to freedom of expression. She told the court that the state papers relate to an opinion which was expressed by the accused person, who had every right to express said opinion according to the Constitution. She told the court that the opinion expressed by the accused person was an opinion that Zimbabweans are entitled to hold about those who govern them.

Mtetwa also submitted that the provisions under sections 33 and 41 should not exist in a democratic society. According to Mtetwa, a requirement that Zimbabweans should not express themselves, especially about those who govern them, contravenes section 20(1) of the Constitution.

"We are in an election year and democracy demands that those who seek public office should be open to public scrutiny and they should know that they put themselves in the line of criticism," said Mtetwa.

A referral to the Constitutional Court can only be refused if in the opinion of the Magistrate the application is "frivolous and vexatious". Mtetwa requested that the court not treat this application as frivolous and vexatious.

Obbie Mabahwana, representing the state, opposed the application arguing that no constitutionally guaranteed right is absolute. He submitted that freedom of expression does not mean one should step over other people's rights.

Mabahwana further argued that Section 20(2) of the Constitution provides for exceptions to the exercise of this right in the interest of defence, public safety, public order, economic interests and public health.

Magistrate Shomwe will make a ruling on 25 June 2008.

Nkomo was charged with "undermining the authority or insulting the president," in connection with allegations that he told a staff member at the Attorney General's Office, Michael Mugabe, to tell "his father" to step down. Michael Mugabe is the president's nephew. The incident allegedly occurred shortly before a 2 May court hearing, in which Nkomo was representing two journalists.

On 30 May, Magistrate Shomwe dismissed an application for removal from remand which was made by Nkomo on 23 May.

In dismissing the application, Magistrate Shomwe cited that Article 13, subsection (2e) of the Zimbabwe Constitution states that for one to be deprived of his personal liberty as may be authorised by law there should be reasonable suspicion of his having committed, or being about to commit, a criminal offence. Under the present circumstances, there is reasonable suspicion that an offence was committed. Therefore the application was dismissed.

The defence counsel failed to submit a second application that questions the constitutionality of the sections under which Nkomo is being charged, after Prosecutor Public Mpofu asked for the postponement of the matter to 5 June.

Mpofu was standing in for the case prosecutor, Tawanda Zvekare, who was said to have gone out of town. Thus the postponement would enable Zvekare to hear and respond to the matter upon his return.

Mtetwa pointed out that Zvekare's absence was a deliberate attempt to frustrate the accused person's rights since prior notice about the defence counsel's intentions had been given. The intention had been made known on the day of initial remand and when the first application was made on 23 May.

Mtetwa stated that Zvekare held the court in contempt as he had deliberately chosen not to instruct one of his colleagues to deal with the matter. Therefore the court should not be party to the state's attempt to deprive the accused of his rights.

The defence counsel applied for the suspension of the accused's reporting conditions and asked that his passport be returned to him for a period of 3 weeks, as the accused is involved in the case of a South African company. Thus Nkomo would need his passport to enable him to travel to South Africa.

Magistrate Shomwe granted the defence council the submission made in their application by suspending Nkomo's reporting conditions and ordered that his passport be returned to him from 3 June to 24 June. Hearing on the second application was postponed to 3 June.

Updates the Nkomo case: http://www.ifex.org/en/content/view/full/93655


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