By Kumbirai Mafunda
The hearing and determination of an appeal filed by Harare East constituency legislator Hon. Tendai Biti got off to a false start on Monday 9 March 2020 after the High Court postponed the matter to Monday 11 May 2020.
High Court Judges Felistus Chatukuta and Pisirayi Kwenda postponed the hearing of Hon. Biti’s appeal after the state requested for a deferment of the hearing as Editor Mavuto, a law officer with the National Prosecuting Authority, was not available to argue the matter on behalf of the state owing to a bereavement in his family.
Last year, Hon. Biti filed an appeal in the High Court challenging both his conviction and sentence for contravening some provisions of the Electoral Act.
Hon. Biti wants the High Court to set aside his conviction so that he is not found guilty and get acquitted on both charges of contravening section 66A (1)(a) and section 66(A)(1)(b) of the Electoral Act.
The appeal was filed after Harare Magistrate Gloria Takundwa on Monday 18 February 2019 convicted the opposition MDC-Alliance party’s Vice President for unofficial or false declaration of election results as defined in section 66A(1)(a) and section 66(A)(1)(b) of the Electoral Act after ruling that the state had managed to prove its case against the Harare East constituency legislator beyond any reasonable doubt and sentenced him to pay a fine of $200 and in default of payment seven days imprisonment.
In their appeal, Hon. Biti’s lawyers Beatrice Mtetwa and Alec Muchadehama of Zimbabwe Lawyers for Human Rights argued that Magistrate Takundwa had grossly erred and misdirected herself when she convicted the human rights lawyer and imposed such a sentence.
Mtetwa and Muchadehama argued that Magistrate Takundwa misdirected herself in failing to properly consider and pronounce herself on the pre-trial violations of Hon. Biti’s fundamental rights and on the legality or otherwise of the human rights lawyer’s “arrest” in Chirundu in Mashonaland West province.
The lawyers argued that Magistrate Takundwa grossly erred and misdirected herself by holding that the Harare Magistrates Court had jurisdiction to preside over Hon. Biti’s trial when the unquestioned evidence was that he was unlawfully removed from Zambia in violation of the neighbouring country’s High Court order and of domestic, regional, continental and international law relating to political asylum seekers.
Mtetwa and Muchadehama contended that the Magistrates Court erred and misdirected itself when it failed to consider and take into account that results posted at polling stations and constituencies by the Zimbabwe Electoral Commission (ZEC) are in fact official results on which the public is entitled to report on.
Hon. Biti’s lawyers submitted that the charges preferred against their client were superfluous once it was accepted that the election results are in fact declared and announced, once the constituency return is posted outside the polling station, or a constituency ward centre and a provincial command centre.
The lawyers stated that Magistrate Takundwa erred and misdirected herself in convicting Hon. Biti when there was no intention proven by the state of him having committed the offences given the opposition legislator’s evidence that he held a media briefing to compel ZEC to release the election results early and in any event what he announced were not official results.
The lawyers also argued that section 66A(1)(a) and section 66(A)(1)(b) of the Electoral Act are unconstitutional in that the two provisions unjustifiably infringe his right to freedom of expression as set out in section 61 of the Constitution, his right to information provided in section 62 of the Constitution and his political rights guaranteed in section 67 of the Constitution.