The State case came unstuck yesterday due to shocking incompetence by State counsel, culminating in the provisional suspension of the ban on demonstrations in Harare’s CBD by the High Court.
Due to the amateurish show from the state prosecution, the bench ended up suspending the order of invalidity for a period of seven working days to give the State time to put its house in order, failing which the ban would be voided.
This means the ban on demonstrations will be allowed to operate for the next seven days, if the seven days lapse without the State acting on its defective case, the provisional order will be confirmed and the ban voided.
A lawyer close to developments, who cannot be named for professional reasons, expressed shock at State counsel Mr Happy Magadure’s apparent wilful disregard of the Court’s directive to put his house in order, culminating in Justice Priscilla Chigumba declaring Statutory Instrument 101A of 2016 that banned demonstrations in Harare’s CBD invalid and ultra vires the Public Order and Security Act and hence the Constitution.
When the parties; the State represented by Mr Magadure of the Attorney-General’s office, and the Zimbabwe Lawyers for Human Rights led by Mr Tendai Biti and Mr Dzimbabwe Chimbgwa; convened for a case management meeting on Monday — the source said — the Judge advised the State counsel that his papers were defective as they only had the Police Commissioner General’s affidavit and not the Affidavit of the first respondent Officer Commanding Harare District, Assistant Commissioner Newbert Saunyama who issued SI 101A.
‘‘The Judge noticed that in so far as the Statutory Instrument is concerned there was only the affidavit of the Police Commissioner General, and not the first respondent,’’ the legal expert said.
‘’The judge then told the State that the papers were defective and directed the State counsel to put his house in order by bringing an affidavit done by the Officer Commanding Harare District because he was responsible for issuing the Statutory Instrument. The Commissioner General’s affidavit would be a supporting affidavit.’’
That was on Monday, the judge then postponed the matter to Wednesday to give the State time to put its house in order by filing the first respondent’s affidavit.
‘‘It was a directive from the Judge that the affidavit should be included. So when they reconvened today (yesterday), State Counsel did not bring the required affidavit from the Officer Commanding Harare, which meant that the State papers were defective. They had not been corrected as directed by the judge. And the legal implication of that is the State papers became inconsistent with Posa and thus unconstitutional to the extent of that inconsistency,’’ she said.
The lawyer said the reason why the Officer Commanding HarareDistrict’s affidavit was required was that in terms of Section 27 of Posa, one does not just publish a ban without first publishing the draft ban for the benefit of all stakeholders.
‘‘You do not just publish the ban and say that is the order. You must first publish the draft order to all stakeholders so that you hear their inputs and concerns for a certain period. After that if you still want to publish the order you then gazette it. Now with this ban, all this was not done.
‘‘The reason why all this was not done is that there is a provision for publishing if it’s not expedient to publish and consult stakeholders you can still publish without consultation but then you must give evidence why it was not expedient, and why you are proceeding like that. You must justify it by way of evidence and in an application it normally means an affidavit by the person ordering the action, and in this case the Officer Commanding Harare,’’ the lawyer said adding that the first respondent’s affidavit would have provided the justification needed to bypass the provisions of Posa.
‘‘What the First respondent’s affidavit should have done is provide justification why it was not expedient for him to follow all those procedures outlined in Section 27 of Posa. If it was because of the urgency of the matter, he would have explained the urgency, and offered the situational report and all that. That is the affidavit that would have justified the ban.’’
Surprisingly when asked by the judge why he had not brought the affidavit as directed by the Court on Monday, Mr Magadure is said to have offered no explanation
‘‘There is no explanation yaapa. He was asked why he did not bring the affidavit, and said I have no submissions to make. He didn’t even say the Officer Commander Harare is out of town, he will be found tomorrow. He didn’t even say I thought the Comm Gen’s affidavit was sufficient, he couldn’t have said so because on Monday he had been told that the Comm Gen’s affidavit was insufficient, the Officer Commanding Harare’s affidavit was needed,’’ the lawyer said.
The prosecution’s failure to heed the Judge’s directive thus made the Statutory Instrument 101 defective for non-compliance with Posa and non-compliance with the directive of the court as well.
Repeated bungling by the Government’s prosecuting arm has raised the spectre of serious infiltration of the prosecution.