<html xmlns:v="urn:schemas-microsoft-com:vml" xmlns:o="urn:schemas-microsoft-com:office:office" xmlns:w="urn:schemas-microsoft-com:office:word" xmlns:m="http://schemas.microsoft.com/office/2004/12/omml" xmlns="http://www.w3.org/TR/REC-html40"> <head> <meta http-equiv=Content-Type content="text/html; charset=utf-8"> <meta name=ProgId content=Word.Document> <meta name=Generator content="Microsoft Word 12"> <meta name=Originator content="Microsoft Word 12"> <link rel=File-List href="cid:filelist.xml@01CF20FF.3FDC3860">  <style>  </style>  </head> <body bgcolor="#CDE5DE" lang=EN-ZW link="#00C8C3" vlink="#A116E0" style='tab-interval:.5in'> <div class=Section1> COURT WATCH 1/2014<o:p></o:p> [3rd February 2014]<o:p></o:p> The State v Human Rights Defender Beatrice Mtetwa Part I: From Arrest to Start of Trial<o:p></o:p> This is the second Court Watch on the prosecution brought against prominent human rights lawyer Beatrice Mtetwa. It outlines the court proceedings from 19th March 2013 up to the start of her trial on 10th June, apart from the initial tussle to get Mrs Mtetwa released from custody. [Court Watch 4/2013 detailed the extensive bail hearings, from 17th to 25th March, that ended with Mrs Mtetwa’s release on 25th March.]<o:p></o:p> Background<o:p></o:p> On Sunday 17th March 2013, police officers arrested and detained Beatrice Mtetwa while she was attending to her client Thabani Mpofu, whose home was being raided by police. [Mr Mpofu, Felix Matsinde, Mehluli Tshuma and Warship Dumba were all arrested on the same date: Mr Mpofu at his home at the time of the search, the others elsewhere. The four, who had been working in the field of research at the MDC-T’s communication office, were later charged with “impersonating a police officer” for allegedly collating dockets on large-scale corruption by top officials.]<o:p></o:p> In the events leading up to her arrest, Mrs Mtetwa is said to have demanded that the police produce a valid search warrant and an inventory for materials that had been removed from Mr Mpofu’s home, and to have informed the police that what they were doing was “"unlawful, unconstitutional, illegal and undemocratic.” She was also accused of having called the police "Mugabe's dogs" and "confused cockroaches". The State claimed that she caused a commotion by shouting and pacing around, taking photographs with her cell phone, and shutting the gate at one point to prevent the removal of documents. Mrs Mtetwa’s cell phone was confiscated by police; she was handcuffed; put in the back of a truck; and taken to the MDC office at 14 Bath Road where a further search was conducted. Later she was alleged to have orchestrated the removal of four computers from Bath Road before the search teams arrived there. From Bath Road, she was taken to the Law and Order section at Harare Central police station and charged with “defeating and/or obstructing the course of justice” by hindering police in the execution of their duty. She was taken to cells at Rhodesville police station at 5.30 pm. <o:p></o:p> After extensive court applications, detailed in Court Watch 4/2013, Mrs Mtetwa was finally released from custody after a successful High Court appeal on 25th March.<o:p></o:p> Pre-Trial Court Proceedings: 19th March to 10th June<o:p></o:p> Mrs Mtetwa was brought to court on Tuesday 19th March. She was charged with “defeating and/or obstructing the course of justice” contrary to 184(1)(g) of the Criminal Law (Codification and Reform) Act by hindering police in the execution of their duties [maximum penalty on conviction: is a fine of $400, or 2 years’ imprisonment, or both. <o:p></o:p> Trial was set down for the week of 27th May before Magistrate Tendayi Mahwe. Mr Tawanda Zvekare, the Acting Director of Public Prosecutions in the Attorney General’s Office, prosecuted, assisted by chief law officer Michael Mugabe. Mrs Mtetwa led her own defence, with Mr Harrison Nkomo as co-counsel. International trial observers and some of Mrs Mtetwa’s relatives travelled from outside the country to attend the trial.<o:p></o:p> Delayed start to proceedings From the start, Mrs Mtetwa sought to have her matter dealt with expeditiously so that she could attend to her heavy caseload. She requested that the trial be set down for a full week, to prevent unnecessary delays and to minimise the disruption to her clients. In spite of this, the trial was subject to repeated delays on the part of the State. <o:p></o:p> On 27th May, before the trial had even begun, the State successfully applied for an adjournment on the basis that Mrs Mtetwa had double-booked herself with another trial. Although Mrs Mtetwa stated the client was being represented by a colleague in her absence, Mr Zvekare argued that Mrs Mtetwa had failed to disclose that she was due to attend another trial, and had thereby deliberately misled the court. Mrs Mtetwa strongly disputed this but her request to provide evidence of her full disclosure in the matter was denied as “out of order” by the magistrate. The case was set down for Saturday 8th June. <o:p></o:p> [Comment: the case was repeatedly set down on Saturday mornings. This meant that it was extremely difficult for international trial observers and Mrs Mtetwa's relatives to observe any significant part of the trial. The matter also progressed very slowly as a result, as the Magistrates Court only sits in the mornings on a Saturday.]<o:p></o:p> Recusal of Magistrate Tendayi Mahwe<o:p></o:p> On Saturday 8th June the Defence applied for the recusal of Magistrate Mahwe, raising two grounds:-<o:p></o:p> <![if !supportLists]>1.   <![endif]>He was also presiding over the case of Thabani Mpofu & Others. He had already heard evidence in that case on issues that would arise and would be in dispute in Mrs Mtetwa’s case. This gave rise to a clear conflict, as his findings in the other matter would directly impact on Mrs Mtetwa’s trial.<o:p></o:p> <![if !supportLists]>2.   <![endif]>His denial of Mrs Mtetwa’s right to adduce evidence on an issue in which her credibility was at stake [whether she had deliberately misled the court by double-booking herself on 27th May], was prejudicial and contrary to her constitutional right to a fair trial. He was likely to demonstrate similar bias against the Defence in future applications.<o:p></o:p> The magistrate held that the refusal to allow Mrs Mtetwa’s evidence in relation to disclosure of her other trial's dates did not justify a recusal. He accepted, however, that, in presiding over the Thabani Mpofu & Others case, he was indeed privy to evidence that would be led in Mrs Mtetwa’s matter, and therefore recused himself.<o:p></o:p> Case Re-Allocated<o:p></o:p> The case was reallocated to Magistrate Rumbidzai Mugwagwa and the trial was set down to begin on 10th June.<o:p></o:p> Bill Watch 2/2014 will contain Part II, covering the trial through to acquittal. <o:p></o:p> . Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied<o:p></o:p> To subscribe or unsubscribe from this mailing list please email <a href="mailto:veritas@mango.zw">billwatch@mango.zw</a><o:p></o:p> HAD If you wish to contact Veritas please email <a href="mailto:veritas@mango.zw">veritas@mango.zw</a> <o:p></o:p> If you are requesting legislation please email <a href="mailto:veritas@mango.zw">veritas@mango.zw</a> or look for it on <a href="http://www.veritaszim.net">www.veritaszim.net</a><o:p></o:p> </div> </body> </html>