On Thursday 22 March 2012, Women of Zimbabwe Arise (WOZA) Leaders Jennifer Williams and Magodonga Mahlangu appeared before Magistrate Godwin Sengweni facing Kidnap and Theft charges. Defence lawyer Kossam Ncube produced a High Court order to ‘stay all criminal proceedings’ in Regional Court A and applied for the two activists to be removed off remand appearances in Court pending the outcome of the Review of the Magistrates decision to refuse to discharge Williams and Mahlangu at close of state case.

As has now become a bad habit the state opposed the application and Magistrate Sengweni remanded to activist to 26 April 2012 when he will
give a ruling on if they are to be removed off remand.

On Friday 23 March 2012 Jennifer Williams and 9 other members arrested on 7 February 2012 in Bulawayo and charged with ‘Criminal Nuisance’ appeared in court 1. Their lawyer Lizwe Jamela, Chief Law officer of ZLHR, submitted an application to take a challenge to the Supreme Court. The Prosecutor and Magistrate will respond on 27 April 2012.

This Supreme Court application is in response to the State insistence on charging the activists with peaceful protest related laws when
there is a landmark ruling won by Williams and Mahlangu for their right to protest to be unhindered. This landmark ruling has been
successfully used by scores of activists but the Williams and Mahlangu cannot seem to enjoy it as a legal precedent.

On the 22nd March, Riot Police surrounded the Tredgold Magistrates court monitoring closely the movement of WOZA leaders and members.
Seven police officers chased anyone standing close to the activists so as to isolate them and scrutinise their movement. They even chased
away a mother breastfeeding her baby on the pavement outside the court.

When the 2 members walked across the road to meet another member, 2 Riot police followed them and searched them. One member was found with a WOZA branded scarf – standing up for my rights – which was immediately judged to be seditious and she was surrounded by 4
officers who held onto her clothing and marched her for one city block until a back up vehicle with a truck load of Riot Police arrived to
pick her up and took her to Bulawayo Central police station. She was advised that she would be detained but two minutes later Mr. Jamela of
Zimbabwe Lawyers for Human Rights (ZLHR) arrived the Law and Order plain clothed police officers indicated that she was not under
arrested but was merely picked up for profiling (personal details and affiliations). She was questioned about a ‘proposed’ demonstration
later that day. However WOZA was not planning a protest so she replied that she knew of no such demonstration only Court appearances. She was  then released.

WOZA wish to warn the Police that the public outcry surrounding the searching and arrest our young member should send a strong message
that members of the public are getting irritated with the constant presence of Riot Police in the street conducting arbitrary searches
and chasing people standing in groups away from the city centre. Zimbabweans patience with the military-style policing is wearing thin.

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

Women of Zimbabwe Arise (WOZA) Leaders Jennifer Williams and Magodonga Mahlangu appeared before Magistrate Godwin Sengweni on Monday 12 March 2012. Their appearance was for continuation of Trial. A review process had been submitted to the High Court and is scheduled to be heard on 19 March 2012 before Judge Cheda Senior.

Advocate Perpetua Dube appearing with Godfrey Nyoni made submissions producing evidence of the set down date. They also presented a Doctors certificate in respect to the health of first accused Jennifer Williams and proof of the purchase of medication causing drowsiness. The Defence requested a postponement until the High Court application has been finalised. Prosecutor Goodluck Katenaire vehemently opposed the application insisting Williams was faking illness to stall the proceedings and that she should take the defence stand.  He went onto to complain that ‘these are the people who say justice delayed is justice denied’.  He made accusations that the Doctors certificate and prescription were fake.

Advocate Dube attempted to argue the matter further with a quote; ‘Justice must not only be done but must be seen to be done’. But with those wise words and a 45minute adjournment Magistrate Sengweni returned to deliver a shocking ruling. He narrated how Williams could not walk unaided and had to be helped in and out of the dock, that she was obviously unable to pay attention to proceedings. He then referred to the court as a ‘human court’ and ordered that she be sent to prison ‘to save her life and dignity’ and be seen by a prison doctor.  He then remanded both accused persons to reappear before him on 15 March.

Scores of WOZA members attending the court in solidarity verbalised their shock. The court had to adjourn so as to clear the courtroom. A further delay was caused by the search for female prison guards to help Williams out of the dock and down the 4 flight of stairs into the prison holding cells. Riot Police were also summoned to remove the upset WOZA members from the pavement surrounding the Court.

This ‘security threat’ apparently caused by peaceful human rights defenders resulted in the prison guards removing Williams off the court property to the downtown prison complex until she could be transported the 30 kilometres to Mlondolozi prison complex.

Meanwhile noting that Williams did not have her handbag with medication, Mahlangu spent 3 hours trying to locate Williams. Prison officers refused to divulge her whereabouts thereby withholding her access to medication till late the following afternoon.

Fortunately the High Court ruled that the trial proceedings must be stopped; Williams original bail conditions restored and that rescued the situation. Williams won her freedom after 2 days and one night in Mlondolozi prison, most of that time without her medication or food and sleeping on dirty prison blankets in an overcrowded cell with 16 other inmates. Despite the nightmare experience WOZA reports that resilient Williams is recovering at home. She was able with the help of Magodonga Mahlangu to walk into the dock in court today 15 March and was remanded to 22nd March 2012.

The High Court matter is in open court on 19 March 2012 and will deal with the review of the refusal by Magistrate Godwin Sengweni to discharge the activists for the kidnap and theft charge at the close of the state case.
for background visit http://wozazim.org/?p=1158

Woza Moya IWD Demands Zimbabwe  

WOZA at 10 years old

Magistrate Vivian Ndlovu rules that Williams and 9 other members charged with Criminal Nuisance must face trial. The Magistrate surprisingly did not address key issues in the application covering right to query placement on remand and the fact that the charges have constitutional implications and are in direct contravention of a landmark Supreme court ruling. see http://wozazim.org/?p=1181

This ruling follows an application by the defense for refusal of further remand. She also ordered a Court visit to Bulawayo central police station for an investigation into the complaints leveled against the police by the activists.

The activists have briefed Defense lawyer and Zimbabwe Lawyer for Human Rights chief legal officer, Lizwe Jamela to prepare an application to the Supreme Court questioning the basis for these charges which are in violation of the Supreme Court ruling obtained for a 2008 arrest by WOZA leaders Williams and Mahlangu.

Meanwhile the High Court has set down for 15 March 2012 an urgent application for stay of trial proceedings in the case kidnap and theft charges faced by Williams and Mahlangu. The Defense team must seek a further postponement of the Trial proceedings which were due to recommence on 12 March 2012. Application for refusal of remand— Jenni and others (High Court called and further postponed the hearing to 19 March 2012 as they have civic matters to deal with!)

Women of Zimbabwe Arise (WOZA) leaders Williams and Mahlangu facing kidnap and theft charges appeared in Regional court today represented by Mr. Kossam Ncube. They were remanded to 12 March 2012. The matter was for continuation of Trial but the activists have submitted two processes before the High Court that await hearing. The High Court is yet to assign a Judge and set down the matters. The first being a review of the Magistrate Sengweni decision to refuse the discharge the two from the charges and the second requesting a stay of proceedings pending a decision on the review process.

When the activists last appeared the prosecutor and magistrate had indicated that the High Court process must be allowed as it would impact the Trail. Before the court proceedings began, the prosecutor, Godwin Katenaire went back on his word and told Mr. Kossam Ncube that the Trial would proceed. Noting this, Mr. Ncube insisted that they attend the Magistrates chambers where a 30 minute argument ensured. In the end sense prevailed and the Magistrates granted a postponement to 12 March.

Williams and 9 other members arrested on 7 February 2012 at the offices of Joint Monitoring and Implementation Committee (Jomic) appeared before Magistrate Vivian Ndlovu on 1st March and were remanded to 5th March. The matter was for ruling on the application for refusal of further remand on charges of Criminal Nuisance. When the activists appeared on 21st September Lawyer Lizwe Jamela had applied for charges to be quashed and the prosecutor Jerry Mutsindikwa had not opposed the application. Mutsindikwa then backtracked to oppose the application and argued that the 10 accused had a case to answer and that the Trial should proceed. The Magistrate will give her ruling on 5th March.

Meanwhile WOZA members from 3 different areas have marched to hand over their petitions to the Main Post Office in central Bulawayo. In all 3 instances Riot police arrived at the post officer too late to affect any arrests. The petitions are calling for media reform and a reduction of Zimbabwe Broadcasting Corporation (ZBC) license fees.

However WOZA leader Magodonga Mahlangu could not get into her home on the evening of the protests as 5 strange men seemingly police officers were parked at her gate for over 3 hours. At one time they attempted to break her gate chain and padlock before leaving. As Jennifer Williams appeared in court, 3 plain clothed officers lurked with intent to arrest her for the ZBC protests; they were eventually discouraged from this folly by the argument in the court proceedings that Zimbabweans have the full right to protest respected in the Constitution.

WOZA members, Jenni Williams and Magodonga Mahlangu, appeared in remand court this morning in Bulawayo. They had been arrested on 6th June and held until Saturday 9th June when they were finally released on bail.

They had been charged under Sections 37 (1a) and 46 (2v) of the Criminal Law (Codification and Reform) Act.
Chapter 37 – ‘participating in gathering with intent to promote public violence, breaches of the peace or bigotry’. Section (1a) reads “any person who acts together with one or more other persons present with him or her in any place or at any meeting with the intention or realising that there is a real risk or possibility of forcibly disturbing the peace, security or order of the public or any section of the public.”
Alternatively, Chapter 46, as read with Section 2(v) of the Third Schedule to the Criminal Code, reads “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”.

Their lawyer, Kossam Ncube, filed a constitutional challenge to these charges. His argument is that the wording is too vague and meaningless, thereby rendering them ineffective and a waste of time. He is requesting that the women be removed off remand whilst the constitutionality of these charges is being debated.

As the case had been assigned to another prosecutor, there was a delay of several hours whilst the new prosecutor was given time to prepare. The magistrate then heard the arguments. She will give her verdict tomorrow morning at 8am.

WOZA members will also be on trial in Gweru tomorrow. Both groups who had been arrested in early March during or after the People’s Launch demonstration will appear in the Gweru Magistrate’s Court tomorrow. It is anticipated that the charges against the nine members who were arrested after the demonstration will be dismissed. The other 26 members all face charges under the Criminal Law (Codification and Reform) Act.

In other news, two members who had been badly beaten during the demonstration on 6th June are still receiving medical attention. One woman was beaten with baton sticks across her breasts and has developed abscesses. She is still in a lot of pain. Another member was kicked in the abdomen and required an operation. She is out of hospital and shall be attending a review tomorrow.

WOZA members are currently facing two separate matters before the Courts

Criminal Nuisance Charges 7 February 2012 Defended by Nikiwe Ncube and Mr Lizwe Jamela Zimbabwe Lawyers for Human Rights. Current status: the 10 appeared in court on the 13 February for Trail which failed to begin. The 10, including Jennifer Williams appeared in court on 21st February 2012 but no response to an application for refusal of further remand was forthcoming. The response will be submitted on 1st March 2012 by Magistrate Vivian  Application for refusal of remand— Jenni and others , State case 7 feb 2012 .

Kidnap and theft Charges 21 September 2012 by Jennifer Williams and Magodonga Mahlangu Defended by Kossam Ncube and Advocate Perpetua Dube deployed by Zimbabwe Lawyers for Human Rights

Current status – Trail Began and state case closed:
1.    Application has been submitted in the High Court for the a review of the Magistrates refusal to discharged the duo at the close of the state case.
2.    Application to the High Court for stay of proceedings pending the outcome of the review process explained in number 1.
3.    If application number 2 is denied the duo will appear in court on 28 February 2012.

WOZA Leaders Jennifer Williams and Magodonga Mahlangu delivered a letter of complaint to the Zimbabwe Republic Police Bulawayo headquaters on the treatment by the activits on 7 February by members of the Riot Squad. complaints about 7 feb treatment with police receipt stamp

Five hundred members of Women of Zimbabwe Arise (WOZA) in two separate protests marched to Parliament to commemorating Valentine’s Day and WOZA 10th Anniversary under the theme – Shosholoza for love!  The first protest arrived and was stopped 50 meters from the Parliament door by 8 baton stick and shield wielding Riot Police who refused to allow them to pass.

The activists took the opportunity to sing their love songs to the police and chant their slogans. Four leaders took the opportunity to address the gathering on the constitutional reform requirements of members and the role police should have been playing instead of stopping the peaceful activists.

A 20 minute impasse was broken up by the arrival of a police Landover. The second protest arrived and was also blocked. A senior officer then began to demand the activists disperse and pleas to allow one person to hand over the Woza Moya newsletter with demands fell on deaf ears. He then threatened to use ‘minimum’ force to disperse the gathering but before he could give any orders, a bigger vehicle arrived with over 30 riot police who did not speak to the officer but started to use their shields to push the women and men away from the road. One officer with the tear gas gun cocked the weapon in the air making as if to shoot it.As they pushed members away, some police officers began to beat the peacefully dispersing crowd and this cause pandemonium and people started to run away at speed.

One of the participants was beaten by 4 police officers at once taking turns to slay her across the neck and shoulders.  She apparently was being beaten met with this level of severity for telling them -‘the thieves are going free while you beat us’. After they set up her she then told them off saying – you are now the ones starting violence.

Ten members had to seek medical attention for soft tissue bruises and lacerations caused by baton stick injuries.

WOZA call on the police officers to be more professional. It is illogical to beat people as they are actually dispersing and a sign that police officers have too high an appetite for violence. WOZA also wish to draw comparison between the semi professional behaviour of police at parliament who go through the motions of engaging protest leaders whereas in Bulawayo the police offices just jump from their truck and thump anybody in sight showing a greedy appetite for violence. On 7th February the Bulawayo edition of the protest was violently dispersed by police officers and over 30 members had to seek medication for abrasions and bruises.

An opinion by Lawyer Andrew Makoni WOZA counsel 2009 on the role of police from the Criminal Law (Codification and Reform) Act (Chapter 9:23)…..the legislature is aware that processions inevitably interfere in some way with other people’s movements, hence the provisions of section 29 (1) (c) which prescribes what a police officer may do if a regulatory authority has not received a notice of the intended procession more than 48 hours before the gathering, where such notice is required. In terms of this subsection, an officer may restrict the gathering to a place or guide the participants along a route. This section does not give the police the power to arrest in the event of an unlawful gathering but the power to regulate the gathering. Neither does the act provide police officers with the right to brutally disperse peaceful human rights defenders.

The WOZA members arrested and detained at Filabusi Police Station today were released without charge just after noon. Police returned all the t-shirts and scarves that they had confiscated but kept all the placards and copies of the People’s Charter to submit to provincial leaders.

Minutes before the peaceful protest was about to begin, a police vehicle arrived at the Post Office, the starting point of the demonstration. An officer armed with an AK 47 assault rifle alighted and approached two members. He said to them – “you are always talking about rights, but why don’t you say what rights you are talking about.” He then ordered them into the vehicle and drove them to the police station. Approximately 150 other members decided to follow and hand themselves in. Police stopped recording down their names after an hour, saying they were tired.

When the female officer in charge asked them why they were there, the women briefed her on the hunger in their homes, their inability to pay school fees and the fact that they were no longer allowed to dig for gold to help themselves. She apparently sympathised with them saying she also found it hard to make ends meet in her home. She then called the District Administrator to attend the ‘meeting’. He listened to the complaints; telling them food aid would soon be coming and that they should set more affordable fees, as parents. He accepted the People’s Charter and placards, saying that he would pass them on to his seniors and that a reply would come to them soon. They were then told to go home.

When lawyers attended shortly after their release, police denied that any women had been arrested – they had merely had a meeting with them. The lawyer did overhear some police officers planning to locate the whereabouts of Jenni Williams who was in the area to monitor proceedings however. Fortunately Williams was able to leave in the company of the lawyers before they could make good their plan.

WOZA declare a victory for non-violent protest and acknowledge the ‘sisterhood’ from the officer in charge who treated the WOZA activists with respect. We look forward to the promised food aid, hopefully without any political strings attached, from the District Administrator to be fulfilled.

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.