In the matter between - THE STATE. and BEATRICE MTETWA. held at THE HARARE MAGISTRATES COURT (CRIMINAL DIVISION) ROTTEN ROW, HARARE

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1 DISTRIBUTED BY VERITAS Veritas makes every effort to ensure the provision of reliable information, but cannot take legal responsibility for information supplied. In the matter between - THE STATE and BEATRICE MTETWA held at THE HARARE MAGISTRATES COURT (CRIMINAL DIVISION) ROTTEN ROW, HARARE REPORT OF THE TRIAL OBSERVER (COMMONWEALTH LAWYERS ASSOCIATION) STUART WILSON Advocate of the High Court of South Africa Member of the Johannesburg Bar Executive Director, Socio-Economic Rights Institute of South Africa (SERI) TEBOHO MOSIKILI Attorney of the High Court of South Africa Director of Litigation, SERI LINDOKHULE MDABE PRINCESS MAGOPANE Candidate Attorneys, SERI ZWELAKHE MAGKELEMELE Pupil Advocate, Johannesburg Bar 24 February 2014

2 A INTRODUCTION 1 On 17 March 2013 police officers from the Harare Central Police Station executed search warrants at 2023 Area D, Westgate and 14 Bath Road, Harare. 1 The Westgate address is the residence of Tabani Mpofu, then a senior legal adviser to Morgan Tsvangirai, the former Prime Minister of Zimbabwe. The Bath Road address was Mr. Tsvangirai s private office. Mr. Mpofu was arrested in the course of the search of the Westgate address. 2 2 Soon after the officers arrived at the Westgate address, at around 8:15am, Mr. Mpofu telephoned his attorney, Beatrice Mtetwa. He informed Ms. Mtetwa that he was under arrest. Ms. Mtetwa arrived at the Westgate address a short while later. 3 What happened thereafter is in dispute. 3.1 Ms. Mtetwa says that she asked the officer in charge, Chief Superintendent Mukhazi, to see the warrant authorising the search, and that Mr Mukhazi refused, telling her that she would only be permitted to see it at the police station. 1 The facts set out in this report are derived from the evidence led during the trial, or from interviews with the Attorney General of Zimbabwe and Beatrice Mtetwa. Save where specifically indicated, they are not in dispute. Where there is a dispute, its nature and ambit is set out in the text. 2 The officers involved in the search were Chief Superintendent Luckson Mukazhi, Detective Assistant Inspector Wilfred Chibage and Detective Constable Ngatirwe Mamiza. Chief Superintendent Mukazhi was in command of the team that went to Westgate. 2

3 3.2 Mr. Mukhazi says that Ms. Mtetwa became aggressive, and shouted at him and the officers under his command. He says that Ms. Mtetwa called them confused cockroaches and Mugabe s Dogs in Shona and told them what you are doing is wrong, unlawful and unconstitutional. It was also later alleged on the indictment that Ms. Mtetwa started taking pictures on her cellphone and threatened to distribute them to the international community. Ms. Mtetwa denies this. 4 Ms. Mtetwa s cellphone was confiscated. She was then arrested for obstructing the course of justice, within the meaning of section 184 of the Zimbabwean Criminal Law (Codification and Reform) Act 23 of 2004 ( the Criminal Law Act ). 5 On 26 November 2013, Ms. Mtetwa was acquitted and discharged at the end of the state s case, the presiding Magistrate having found that she had no case to answer. 6 Primarily for this reason, we find that Ms. Mtetwa s trial was substantially fair. However, matters of grave concern remain 6.1 Ms. Mtetwa should not have been arrested and charged at all, given that the high-watermark of the state s case was that she allegedly shouted insults at police officers. Legal practitioners acting in the course and scope of representing their clients should be afforded the utmost forbearance and courtesy. The 3

4 arrest of a legal practitioner in the course of carrying out his or her client s instructions is a drastic step. It denies his or her client effective counsel, and has the potential to restrain lawyers more generally from providing the fearless representation to which their clients are entitled. For at least these reasons, the arrest of a legal practitioner acting the course and scope of his or her duties should only take place in the clearest cases of illegal conduct, and where it is strictly necessary to permit the police to carry on their lawful functions. Even on the state s version, that was not the case here. 6.2 The criminal justice system should not be used to punish a legal practitioner for making utterances police officers do not like. The arrest of a legal practitioner in the process of carrying out his or her client s instructions has a clear punitive effect, even where followed by speedy exoneration or acquittal. Ms. Mtetwa spent seven days in detention after her arrest. Although her reputation does not appear to have suffered as a result, an arrest clearly has the potential to damage a legal practitioner s reputation, and practice. 6.3 Ms. Mtetwa s trial was conducted in a less than satisfactory manner. It was heard piecemeal, one or two days at a time, over several months. It is generally in the interests of justice that, once evidence commences, a trial continues uninterrupted until 4

5 a verdict is reached. The reasons for this are obvious. Witnesses are hampered in the presentation of their evidence. Presiding officers, legal practitioners and witnesses are put to considerable inconvenience and expense in preparation to recommence part-heard trials. In this case, the trial was conducted in 10 one-to-three day sessions, scattered over 8 months. A trial conducted in this way has the potential to harass an accused person, and to blunt the effectiveness of the trial as a truth-seeking instrument. 7 In sum, while we are satisfied that the correct result was ultimately reached in this case, Ms. Mtetwa s trial exposes critical weaknesses in the capacity of the Zimbabwean police and the Magistracy to uphold and defend the rule of law. These weaknesses require the most anxious consideration by the Zimbabwean authorities. 8 It is not the purpose of this report to examine the political context in which Ms. Mtetwa s arrest and trial took place. However, we must acknowledge that Ms. Mtetwa s arrest and trial spanned a period in the run-up to, during and immediately after a general election in Zimbabwe, in which both Mr. Mpofu and Mr. Tsvengirai obviously played a large role. We make no comment on what effect, if any, these events could have had on Ms. Mtetwa s arrest and trial. 5

6 9 In preparing this report, we have had the benefit of interviewing Ms. Mtetwa and Mr. Johannes Tomana, the Attorney General of Zimbabwe. We are grateful to them both for making themselves available to meet with us. At least one of us was present in court throughout Ms. Mtetwa s trial. 10 In the remainder of this report, we address 10.1 Ms. Mtetwa s arrest and bail proceedings; and 10.2 The trial proceedings proper. B ARREST AND BAIL PROCEEDINGS 11 The Zimbabwean Police arrived at Mr. Mpofu s residence at around 8am on 17 March They intended to conduct searches at both the Westgate address and at the private offices of the Prime Minister Morgan Tsvangirai at number 14 Bath Road, Harare. The search was in connection with an enquiry into a case of possession of articles for criminal use in terms of section 40 of the Criminal Law Act. 12 Ms. Mtetwa says that the search was unjustified. She says that her client, Mr. Mpofu, had been assisting the Zimbabwean Anti-corruption Commission ( ZAC ) with its inquiries into irregularities at the Ministry of Mines. The articles for criminal use to which the officers referred were in fact items of evidence meant for transmission to the ZAC. Ms. Mtetwa alleges that the police had been put up to the search by senior figures in 6

7 the Ministry. Ms. Mtetwa says that the use of section 40 of the Criminal Law Act was a smokescreen to conduct the search with the intention of obtaining the evidence in Mr. Mpofu s possession and preventing that evidence being passed on to the ZAC. The issue of whether these allegations are true is beyond the scope of this report, and we make no comment on them. We are, however, satisfied these allegations formed part of Mr. Mpofu s instructions to Ms. Mtetwa, that she was acting on these instructions at the time of the search, and that she was entitled to do so. 13 Mr Mpofu telephoned Ms. Mtetwa, and requested that she come over to his house as his legal representative. When Ms. Mtetwa arrived, she asked the police officers present to explain the reason for the search and asked for a copy of the search warrant. 14 The police say that Ms. Mtetwa shouted that what they were doing was wrong, unlawful and unconstitutional. They add that Ms. Mtetwa called them confused cockroaches and Mugabe s Dogs in Shona. 15 At this point the police had already taken Mr. Mpofu into custody and placed him in one of their vehicles. They allege that Ms. Mtetwa was having an argument with Detective Assistant Inspector Chibage at the gate of the residence when she was informed by Chief Superintendent Mukazhi that she was under arrest for obstructing the course of justice. 7

8 16 Ms. Mtetwa was placed in handcuffs and then taken to the back of the police pickup truck, as there was no place for her to sit in front. Because of the restraints, she could not mount the back of the truck vehicle. Detective Constable Mamiza told her that he would not help her get into the vehicle because he was afraid that she would accuse him of sexual harassment. She was helped on to the back of the truck. She sat in the back of the vehicle in restraints with Mr. Mamiza. Mr. Mukazhi and Mr. Chibage sat in the front with Mr. Mpofu. 17 After Ms. Mtetwa and Mr. Mpofu were taken into custody, the police left the Westgate address and went on to 14 Bath Road. 18 At this address, Mr. Mukazhi, Mr. Chibage and Mr. Mamiza were joined by other police officers who also participated in the search of that property. 19 Once the police had completed their searches, they returned with Mr. Mpofu and Ms. Mtetwa to Harare Central Police Station. Ms. Mtetwa was charged. She was then moved to Rhodesville Police Station. Habeas Corpus Proceedings 20 Later that day, Ms. Mtetwa s lawyers approached the High Court for an order granting Ms. Mtetwa s immediate release, on the basis that her arrest was unlawful. Mr. Justice Hungwe granted an interim order for Ms. Mtetwa s release. 8

9 21 The order was served on the custody officers at Rhodesville Police Station at around 2:30am on 18 March The custody officers refused to release Ms. Mtetwa. They said that only police officers from the Law and Order Section of the Harare Central Police Station could authorise Ms. Mtetwa s release. 22 Ms. Mtetwa s legal representatives then advised Mr. Mukazhi, Ms. Mtetwa s arresting officer, and the investigating officer, Detective Inspector Mirimbo, of the court order by telephone around 3:30am. They too simply refused to comply with it. 23 Further attempts to secure Ms. Mtetwa s release on 18 March 2013 were unsuccessful. Bail Proceedings 24 Ms. Mtetwa appeared in court at around 12:00pm for the first time on 19 March Ms. Mtetwa s legal representatives informed the presiding Magistrate, Mrs Gofa, that there was a High Court order authorising Ms. Mtetwa s release. They argued that bail proceedings could only commence if she was not in the custody of the police. 25 Mrs. Gofa found that the order related to the police only and therefore did not bind her and was of no consequence. Mrs Gofa went on that since Ms. Mtetwa had appeared in her court, she could deal with the matter. 9

10 26 Ms. Mtetwa then applied for bail. At the end of her case, the application was adjourned until the following day at the State s request. 27 On 20 March 2013, at 3:30pm, Mrs. Gofa dismissed Ms Mtetwa s bail application. In dismissing the bail application, Mrs. Gofa found that Ms. Mtetwa s alleged conduct at the Westgate property created a reasonable fear that she would interfere with the police investigation into her. 28 Ms. Mtetwa appealed. Her appeal was heard and upheld on Monday 25 March She was granted $500 bail. By that time, she had spent over a week in detention. C THE TRIAL 29 Ms. Mtetwa s trial commenced on 8 June Ms. Mtetwa decided to represent herself. 30 The trial was enrolled before Mr. Mawe, who was also seized with the trial of Ms. Mtetwa s client, Mr. Mpofu. Mr. Mawe recused himself on Ms. Mtetwa s motion for this reason. 31 The trial was then postponed to 10 June 2013 when the matter was allocated to Ms. Rumbidzai Mugwagwa. Luckson Mukazhi 32 The first witness for the state was Mr. Mukazhi, the arresting officer. 10

11 33 Mr. Mukhazi testified that when Ms. Mtetwa arrived at the Mpofu residence, she caused such a scene and made so much noise, that [we] were impeded from continuing with [our] duties. Mr. Mukhazi said that Ms. Mtetwa referred to the police conducting the search as confused cockroaches and Mugabe s dogs in Shona. 34 Mr. Mukhazi conceded in cross-examination that Ms. Mtetwa did nothing to physically restrain or obstruct any of the officers at the scene. It was put to him that Ms. Mtetwa could not speak Shona, and that she could not have said the words he attributed to her in Shona. Mr. Mukhazi denied this. Further Witnesses 35 Four further prosecution witnesses were called on 2, 3, 24, 25, 26 September and 14 and 18 October These were: Wilfred Chibage, Ngatirwe Mamiza, Teisvei Tembo and Brian Mutusva. Mr. Chibage and Mr. Mamiza are both police officers who were present at the Westgate address. Ms. Tembo is a police officer, present at the Bath Road address, who searched Ms. Mtetwa s bag. Mr. Mutusva is a computer technician employed in Mr. Tsvangirai s private office. They added little of relevance to Mr. Mukhazi s testimony. Indeed, a key feature of the trial was that witnesses were allowed to give evidence on a range of issues that were strictly immaterial to the charge. A great deal of time was spent establishing how, for example, the search of Mr. Mpofu s residence was 11

12 conducted, whether Ms. Mtetwa could, or did, take pictures at the Westgate address with her cellphone and whether and when a search warrant was ever produced to Mr. Mpofu. Much of this was not material to whether Ms. Mtetwa was in fact obstructing the police. 36 However, Mr. Mamiza did say that Ms. Mtetwa caused such a commotion at the Westgate address that a large crowd gathered on the opposite side of the street. Ms. Mtetwa said that there was no crowd, because no-one could see into the Westgate address from the other side of the street. Inspection in loco 37 An inspection in loco was conducted on 24 October 2013, during which the defence attempted to establish, amongst other things, that it was not possible for a crowd to have observed what was going on inside the Westgate property from across the street, because of a high perimeter wall around the property. 38 The State closed its case after the inspection in loco. Discharge 39 On 4 November 2013, Ms. Mtetwa delivered a written application for her discharge at the end of the state s case. The state responded in writing on 11 November

13 40 The presiding magistrate delivered her ruling on 26 November She held that Ms. Mtetwa could not have obstructed the police in the course of their duties because they had completed their search by the time Ms. Mtetwa arrived on the scene. She reasoned that because the police were, on their own version, merely loading up seized material onto their truck, and not actively extracting the material from the house on the property, Ms. Mtetwa could not have meaningfully obstructed them. Ms. Mtetwa was accordingly held to have no case to answer. She was acquitted and discharged. D CONCLUSION 41 We conclude that Ms. Mtetwa s trial was substantially fair. Apart from the unsatisfactorily piecemeal way in which the trial was conducted, and the fact that the State was regularly permitted to adduce evidence which was not relevant to the charge, we find no significant irregularities in the proceedings. 42 The biggest cause for concern, of course, is that Ms. Mtetwa s arrest, detention in the face of a High Court order for her release and the subsequent trial were allowed to happen in the first place. It seems plain that, even on the indictment, nothing Ms. Mtetwa was alleged to have done was capable of obstructing justice. 43 Instead, Ms. Mtetwa s arrest and subsequent detention were quite clearly an attempt to harass and intimidate her; to punish her for asserting her 13

14 client s rights. Ms. Mtetwa s lawyering was perceived as an inconvenience, so she was arrested. 44 That Ms. Mtetwa s arrest was not immediately corrected by more senior police officers is unfortunate. But of even graver concern is the decisions of Mr. Mukhazi and Mr. Mirimbo to disobey a direct order from the High Court to release Ms. Mtetwa immediately. Although their blithe disregard for the High Court s orders is clearly enmeshed in a broader institutional culture in which police officers are encouraged to subordinate orders of court to the orders of their superiors or the police s own operating procedures, we would nonetheless suggest that Mr. Mukhazi and Mr. Mirimbo should face disciplinary action or criminal investigation. 45 Mrs. Gofa s subsequent dismissal of Ms. Mtetwa s bail application was also plainly unsupportable. Although it was fairly promptly corrected by the High Court, Ms. Mtetwa still had to spend a week in prison. 46 The rule of law cannot be sustained in a society governed by a security apparatus that does not unequivocally accept the overriding authority of a court order. Nor can the rule of law survive for long if lawyers are detained for asserting their clients rights. We urge the Government of Zimbabwe to ensure that orders and officers of the courts are afforded the appropriate respect in future. 14