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.

The 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’.

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.

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.

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’.

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.

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.

Update on both cases – Monday 14th December:

In the case of Jenni Williams and Magodonga Mahlangu, the file was still not available. Magistrate Mkhonto still refused to entertain any application to have the pair refused off remand, citing her need to have the file before her before she makes any decision on the case. The state did agree to the defence’s request to make the application for removal off remand to another magistrate however. Williams and Mahlangu will therefore appear before Magistrate Msipa at 8am on Tuesday 15th December.

Magistrate Msipa presided over several hearings on the case during the year and is therefore considered to be familiar with the case. She denied the defence’s application to be given leave to appeal to the Supreme Court, ruling that a constitutional case was ‘frivolous and vexatious’. The appeal to the Supreme Court was finally made in terms of Section 24 (1) of the Constitution – applicants can apply directly to the Supreme Court if they feel that they are still aggrieved.

In the case of the Refugee Seven, the magistrate was not available and therefore the group has been remanded to 6 January. They had appeared in court on 10 December to hear whether they can be removed off remand whilst a constitutional challenge is being taken to the Supreme Court.

********************************

WOZA leaders, Jenni Williams and Magodonga Mahlangu, appeared in Bulawayo Magistrate’s Court on Monday 7th December as instructed only to be informed that their court record file, which is kept separate for security reasons, was not accessible. They did not appear in court but were asked to return on Tuesday 8th December.

Upon returning on 8th, their lawyer, Kossam Ncube, was informed that the file is locked in an ‘exhibit’ room and the person with the keys is away on leave but they were trying to call her to come and hand over the file. Later it was said that her line was not reachable.

One of the prosecutors then suggested a duplicate file be prepared, upon which Mr Ncube agreed as long as the state agreed not to oppose his application for a removal off remand. Whereupon the prosecutor advised that he had to take the matter to his chief law officer, Mrs Cheda – ‘you know these political cases are sensitive’ he said. The reply forthcoming from Mrs Cheda was that she had to consult ‘Harare’ (the Attorney General’s office) and could not get through on the telephone. The matter was then postponed to later in the afternoon.

When the matter reconvened in the afternoon, Magistrate Mkhonto refused to hear any of the defence’s arguments whilst the file is not before her. She further remanded the pair to Monday 14th December and instructed the state to produce the original file. When Mr Ncube asked if she would entertain an application on the 14th if the file is not to hand, her reply was that she would only be prepared to entertain any application with the record present. WOZA members in solidarity in the court counted at least seven plain-clothed state agents in the court room.

Meanwhile seven members arrested on 17 June 2009 in Bulawayo during a peaceful protest under the theme “Real People, Real Needs” on UN World Refugee Day also appeared on the same day in the same court and were again represented by Kossam Ncube. Magistrate Tancy Dube was due to deliver a ruling on whether she would allow the defence to take a constitutional challenge in regard to the matter.

After a late start, she granted the application for the matter to be taken to the Supreme Court. The state did not oppose this application. Mr Ncube then immediately applied for his clients to be removed off remand, as they could not continue appearing in court for an indefinite period of time as the Supreme Court has a large backlog. The state, represented by prosecutor Jeremiah Mutsindikwa, opposed this application. He argued that one could not predetermine that the Supreme Court application would not be resolved speedily and that the police could not be burdened to re-summons the accused when the Supreme Court would have dismissed the defence application. Mutsindikwa argued that it was not a limitation on their liberty to keep appearing in court and he would be generous and agree to a long remand period.  The magistrate will give her ruling on 10 December, International Human Rights Day, on whether the seven members can be removed off remand.

WOZA is disappointed that, once again, justice had been delayed in these two matters. Williams and Mahlangu were arrested on 16th October 2008 for demanding that the food situation in Zimbabwe be declared a national disaster and all Zimbabwean be able to access food aid. They have been out of custody in this matter since the High Court granted them bail on 5th November 2008.

Sibongile Matupe and Rose Rukwewo, the two women arrested in Mutare on Wednesday, have finally been unconditionally released. Their lawyer, Mr Nyamaropa of Zimbabwe Lawyers for Human Rights, had managed to get the two women released into his custody last night on the proviso that they would appear in court this morning charged with criminal nuisance. Investigating Officer Renzo had initially insisted on keeping the women in for the full 48 hours despite acknowledging that he had no evidence that they had done anything illegal. Upon arrival at court this morning, the prosecutor refused to accept the charges as police had no evidence. The women were therefore unconditionally released.

Both women are okay after their ordeal. Rose, an elderly woman who suffers from hypertension, had been unwell. She received medical attention this morning and will be all right.

WOZA would like to commend officials in Mutare Magistrate’s Court for their observance of the law and for refusing to participate in the malicious harassment of two innocent women. We would also like to thank all friends and supporters who tried to call Mutare Police Station or emailed their support. Rose and Sibongile have been informed of the solidarity they received from all over the world and are humbled by the support.

WOZA is pleased to announce that one of its founders, Jenni Williams, has been awarded an International Women of Courage Award by the US Secretary of State, Condoleeza Rice. Jenni accepted the award in Washington DC last week on behalf of the members of WOZA.

The award aims to honour the contributions of women in furthering the cause of freedom, justice, peace, and equality. Williams was one of 10 women honoured, having been chosen from 82 activists nominated by various US embassies around the world.

In announcing the award for Williams, the US State Department cited the “harassment and physical abuse” she suffered under President Robert Mugabe’s regime and commended her for “providing an example of courage and leadership by working for change through peaceful and non-violent means.”

In an interview with USINFO on the day of the ceremony, Williams said, “The award is a great honour, but the real award will be a free and independent Zimbabwe.”

She went on to say that she feels empowered, despite the harassment, because WOZA’s strength lies in its community members “who have ownership” in the organization. “It is because of our united struggle, hand in hand, that we are going to get the Zimbabwe we want,” she said.

WOZA would like to congratulate Jenni on receiving this award and continue to be inspired by her strength and leadership.

Five hundred members of Women of Zimbabwe Arise (WOZA) and Men of Zimbabwe Arise (MOZA) conducted a prayer vigil at St Mary’s Roman Catholic Church in Bulawayo on Saturday 31 March 2007. Although there was a heavy police presence there were no arrests.

The activists gathered to pray for peace in Zimbabwe. This day was chosen to commemorate the night of the 2005 parliamentary election where over 250 women were arrested and many brutally beaten by police in Harare as they conducted a prayer vigil.

Today’s prayer has special significance as political violence is on the increase with hundreds of activists arrested and injured. Prayers focused on the need for citizens to refrain from retaliation and for police to refuse to harm people.

As the pray opened, Nkosi Sikelela iAfrica was sung followed by a prayer that Zimbabweans will continue to choose non-violence and love over violence and hate and use peaceful resistance to hold this government and politicians accountable for bad governance.

The vigil went on for one and half hours with singing and powerful prayers calling for lasting peace in Zimbabwe. Several women took the floor preaching and quoting scriptures such as Matthew 5:9 ‘Blessed be the peacemakers’. Women also testified as to how they were assaulted on election night by police in Harare but called on Zimbabweans to remain committed to peaceful protest. The vigil was closed with Timothy 2:1 ‘You then my child be strong in the grace that is in Christ Jesus and what you have heard from me through my witnesses and entrust to faithful people who will be able to teach others as well. Share in suffering like a good soldier of Christ Jesus.’

Initially the participants had gathered in the Church but were moved across to the hall when it became free at 2:30 pm. It was as members were moving over that police details, including PISI officer, Abraham Dapi who is well known to WOZA, arrived. Today, seeking to be surreptitious, Dapi and other officers arrived by commuter omnibus. They did not go into the hall but sat on the church wall and observed. More police officers from the Law and Order department came and their numbers swelled to over 15. A Law and Order officer, Sergeant George Levison Ngwenya, manhandled the WOZA security at the door, asking what was going on in the Hall, threatening her whilst holding her by the scruff of her neck.

As the prayer vigil was drawing to an end it became obvious that police officers were in position and waiting on further instruction. As the members disbursed, Archbishop Pius Ncube came and shook hands with each member, one by one, as they dispersed giving encouragement and reminding people to disperse peacefully. The police officers just continued to observe close by.

After all the members had dispersed, the leaders, including Jenni Williams, began to leave. After shaking hands with the Archbishop they made to walk out of the church grounds. As Jenni left she greeted the police officers who are well known to her. Sgt Ngwenya commented that she had been in a meeting to which she replied that there had been a prayer service. ‘Who were you praying for’ he quipped – ‘For you’, she replied. Ngwenya then roughly pulled one of the prayer organizers aside and asked her when Jenni had become a Roman Catholic. (Williams is not only a Roman Catholic but was in her home parish, St Mary’s)

As Williams and other leaders walked away, police were seen rushing to get into their blue pick up to follow Williams. Fortunately a WOZA security vehicle was quick to pick up Williams and the other leaders and speed away.

WOZA would like to commend Archbishop Pius Ncube for his courage and for the encouragement to members who they knew would have to walk past police officers known for their brutality. We also pay tribute to members of WOZA and MOZA for braving the Public Order Security Act (POSA) and the harsh repressive environment, and their courage to come out in hundreds to pray for peace. We call on the families of police officers Dapi and Ngwenya to give them ‘tough love’ and take them to church to pray for guidance.

HIGH Court Judge Nicholas Mathonsi ruled on 20 June 2011 that Zimbabwe Republic Police (ZRP) officers who had forcefully occupied the Suburbs WOZA property should vacate and restore its full use to the organisation. high-court-ruling-20-june20111

WOZA monitored the situation and observed the police leave after 5:30pm on the 21st June. A cream double came and dropped off a short young officer known to WOZA members and after sometime came back to collect this detective in plain clothes and 2 uniformed details. They left the keys with the tenant stating that police officers were no longer allowed in the property.

WOZA leaders decided to enter the property and verify the state it had been left it and to remove the Ford pick-up that had been in the yard since the raid. A group of six entered the property through the kitchen door and were overcome by a strong smell in the kitchen which caused them to start gagging. The house was quickly closed and the vehicle was driven to a place of safety for the night. Three members immediately began to feel ill with dizziness; vomiting and diahorrea. The next morning the vehicle was offloaded and two bullets (38 mm pistol) were discovered with a metal object that looks like a bearing.

All six members then returned to the house and in the company of Human Rights lawyers and journalists determined that the smell was still present and further investigation throughout the house revealed more ‘planted’ material.

Inexplicably WOZA solidarity cards received from Amnesty members worldwide were removed out of their envelopes and replaced with condoms, both male and female.

A one page document entitled ‘Main Agenda’ had been planted with other WOZA material such as democracy, constitution books that members conduct civic education around. Several copies of this publication were also placed in the document folders of members who had been in the house at the time of the raid.

The state of the house was clearly consistent with information previously obtained on the first day that 20 to 30 plain clothes officers had searched the house.

The fireplace in the lounge shows that something was put up the chimney as there was black ash all over the lounge floor.

At first count many documents and two mobile phones, all food in the house is missing in defiance of the High court order that nothing must be removed.

By 11am, members started to feel very ill and one member fainted and had to be rushed to hospital so the house was closed up once again.

One member spent the day admitted and on a drip and seven other members were treated and discharged. When attending the private hospital, one journalist was also being attended with the same symptoms. Headache; dizziness and disorientation, weak limbs, nausea and diahorrea. The doctors prescribed antibiotics and anti-histamines for all those who attended.

It should be noted that police officers chased away a lawyer who attended the scene of the raid within 15minutes and that our court application was taken on the basis that no legitimate search could be conducted days after the invasion and it was stated that there was real fear that materials would be ‘planted’. Our worst fears were realised by the bullets and other metal objects, documents and condoms planted at the scene. A letter of complain has been sent to the police and court. letter-of-objection-to-law-and-order-22june-zlhr

We also note that had our national coordinator Jenni Williams who is the official organisation representative had attended the house as was constantly demanded over the 12 day invasion period, she would be facing fabricated ‘Treason’ charges. It was not out of guilt that Williams and others left through the back door on the day of the raid but out of knowing the track record of the police officers at the gate and years of members being harassed, threatened, abducted by Law and Order police officers namely George Levison Ngwenya, Lindani Mpofu, Zenzo Moyo and female officer S. G. Ndlovu, known as MaNdlo other whose surnames are Chikango, Nkomo, Chuchu.

Despite knowing their track record, they have stooped even lower than we imagined by poisoning us which is chemical warfare and by fabricating a document.

However, their words ring true in the words they wrote – “People of Zimbabwe we have been oppressed for a long time because we did not know about our right and international obligations. We have lost ubuntu. Dignity and respect because of the type of leadership we have. They are corrupt. They are stealing from people to make themselves rich.  .. We are tired of President Mugabe and he must go by all means. He is full of abuse of power with his ministers. He has no respect of law. (His own laws and International Laws).

They go on to confirm their deepest desires by saying, “Everyone wants him out. Let’s all rise and remove him now. When the date is fixed you will be told. We will do it. Others have done it in Libya, Sudan, Tunisia and Egypt.”

WOZA members stand firmly behind their founder and national coordinator Jenni Williams and ‘praise the lord’ for saving her from these fabricated charges. Williams and WOZA members are committed to a nonviolent struggle and do not believe that bullets can deliver dignity and true independence for all Zimbabweans to enjoy equally. We think that if anyone should be facing Treason charges it is the police officers named above who wrote the ‘main agenda’ document. But as mothers of the nation and through mothers’ eyes we understand that they are finally speaking the truth – we send them our love and say keep speaking out. We will expect their active support when Zimbabweans do what they have suggested in their Zimbabwe Republic Police ‘main agenda’. police-officers-main-agenda-document