S v Biti (19 of 2022) [2022] ZWHHC 190 (11 January 2022)

HH 19-22 HC 9780/18 LAXTON TENDAI BITI versus FRANCIS MAPFUMO N.O and THE STATE HIGH COURT OF ZIMBABWE MANGOTA J HARARE, 13 July 2021 and 11 January 2022 Urgent Chamber Application Muchadehama, for the applicant F Nyahunzvi, for the 2nd respondents MANGOTA J: The applicant, Tendai Biti(“Biti”) is leader of the People’s Democratic Part and Vice – President of the Movement for Democratic Change- Alliance. He filed this application under s 27 of the High Court Act as read with r 62 of the High Court Rules, 2021. He is reviewing the decision of the magistrate who, on 31 August 2018 and sitting at Harare: i) dismissed Biti’s application for permanent stay of proceedings which relate to Biti’s alleged violation of the Electoral Act and s 36 of the Criminal Law Codification and Reform Act. ii) placed Biti on remand on charges of contravening s 66 (A) (i) of the Electoral Act, [Chapter 2:13] and s 36 of the Criminal Law Codification and Reform Act [Chapter 9:23] iii) granted Biti bail of $ 5000. Biti’s grounds of review are that: a) the magistrate’s judgment was grossly unreasonable and irrational - and b) the decision of the magistrate’s judgment was/is malcited with bias and malice on the part of the magistrate. He couched the draft order which he is moving me to grant to him in the following terms: “IT IS ORDERED THAT:

HH 19-22 HC 9780/18 1. 1st respondent’s decision of 31 August 2018 dismissing applicant’s application for permanent stay of proceedings be and is hereby set aside and substituted with the following “1 The application for permanent stay of proceedings be and is hereby granted”

2. The respondents shall pay the costs of this application. Biti’s application for review centres on the events which immediately preceded and succeeded Zimbabwe’s 30 July 2018 election. The events commence with Ms Charity Charamba’s televised announcement of 1 st August, 2018. She was the spokesperson for the Zimbabwe Republic Police. She announced on the Zimbabwe Broadcasting channel and on various media platforms that the police wanted to interview Biti at the Harare CID Law and Order section. The interview, it was alleged, would assist the police to investigate the killings that had taken place earlier in the day. Biti’s narrative is that, following the invitation which the police extended to him he, on 1 August 2018, instructed his legal practitioner, one Aleck Muchadehama to attend to the law and order section of Harare Central Police station where he met detectives Murira and Mudyirwa who advised Biti, through Muchadehama, that they had no business with Biti and that the latter was not required at Harare Central Police station. Biti claims that he did not go to the police station because he was aware of an extrajudicial force (“the force”) which was operating in the country and which would use State institutions such as the police to undertake unlawful action on persons who belonged or were associated with the opposition party. He states that he wanted to ascertain, through his legal practitioner, that there was no other force which operated under the guise of the police service. He claims that the force attempted on his life on 26 July 2018 when he was addressing rallies within the Harare East constituency and at the offices of his law firm on the afternoon of 3 August 2018. It, he avers, harassed his 70-year old mother at the latter’s house, number 2 Poland Way Glen Lorne, Harare and his brother one Stephen Biti when the latter was taking his son to Howard School on 6 August 2018. The force, he claims, attacked the following members of his staff when, on 5 August 2018, it way-laid: a) his driver one Jerrifanos Murambwi whom it pursued as he drove Biti’s Toyota motor vehicle from Kamfinsa shopping centre to Waterfalls; b) his other driver one Alla Charambira as he drove Biti’s Mercedes benz E 280 which it shot at in Highlands – and

HH 19-22 HC 9780/18 c) an MDC Alliance staff member one Farai Gwenhure who was driving a Honda Fit which he had to abandon at Avonlea shopping centre. The force, Biti claims, did not desist. It, on 5 August 2018, went to the house of the mother of his friend, number 19 Waffle Road, Highlands, Harare where it assaulted maids and his friend’s nieces demanding to know of Biti’s whereabouts. He alleges that it harassed his friend’s 94-year old mother. He claims that on 4 August 2018 one Jeremiah Bhamu, a legal practitioner with Muchadehama & Makoni legal practitioners, visited, at his instance, the police’s law and order department from where he inquired why the police were sending people to Biti’s home to attack his relatives. The police, according to him, indicated that they did not know anything, had nothing against Biti and were not looking for him. He alleges that, on 6 August 2018, one Harrison Nkomo, a legal practitioner, called at the law and order section of Harare Central police station from where he queried as to why the police were saying they were not looking for Biti when some people were trying to abduct members of his family and him. Mr Nkomo, Biti states, wrote to the Police Commissioner- General on 7 August 2018 committing himself to surrendering Biti to the police with certain guarantees. Biti alleges that the above-stated occurrences coupled with the events of 1 August 2018 as read with the reports which he received from Glen View, Highfield, Dzivarasekwa, Chitungwiza and from as far as afield as Buhera, Mutoko and parts of Manicaland created in him the reasonable apprehension that his life was in danger. He avers that he felt that the State did not have the capacity to protect him, that the police were not in charge and that the force was in charge of what was then happening in the country. He states that he made up his mind to flee Zimbabwe. He avers that he anticipated that, once the dispute was settled and a President sworn in, it would be safe for him to return to Zimbabwe. He alleges that he decided to flee from Zimbabwe to Zambia which, in his view, was best suited because of its one-stop-border arrangements. He states that his companions and him left Harare around 7 pm of 7 August 2018. These comprised his aide, one Clever Rambanapasi, his legal practitioner one Ngobizitha Mlilo, the latter’s driver one Godfrey and his brother-in-law, one Tawanda Chitekwe. His companions and him reached Chirundu Border Post at 4 am of the following day, according to him. They, he alleges, drove through into Zambia and, on reaching the border post, he gave his passport to his aide, Clever Rambanapasi, whom he instructed to seek political asylum. Clever Rambanapasi, he claims, handed his passport to the Zambian immigration officer who advised that he would seek a directive from his head office in Lusaka. He states that, whilst his companions and him were on the Zambian side of

HH 19-22 HC 9780/18 the border, someone knocked at the window of his car, identified himself as a detective who was based at Chirundu and he indicated that he wanted to take Biti back to Zimbabwe. He alleges that he told the policeman that: i) he (the policeman) did not have extra-territorial jurisdiction because he (Biti) was in Zambia- and ii) he had applied and sought for political asylum. He states that the policeman told him that the place where they were was a one-stop border post and that Biti was therefore still in Zimbabwe. He alleges that he retorted and told the policeman that once he crossed the river he was in Zambia. He claims that, as he argued with the policeman, he got out of the car and shouted to the State security agents whom he told that they had no jurisdiction to arrest him and that he was not returning to Zimbabwe where they wanted to kill him. He avers that there was chaos and drama when the State security agents tried to abduct him and put him onto a vehicle to take him back to Zimbabwe. The Zambian authorities, he claims, eventually intervened and insisted that he should be brought into immigration offices. He states that the Zambian immigration officials interviewed him and asked for full details of his asylum application. He avers that they drove his companions and him to the Zambian side of Chirundu police station. He states that a few minutes later it became clear that Zimbabwe State security agents had driven into Zambia in pursuit of him. He alleges that after an hour or so their Zambian hosts told his companions and him that it was no longer safe for them to be driven to Lusaka without reinforcements because the Zimbabwean State security agents who were on the Zambian roads were of such a large number that they outnumbered the Zambians. He claims that, at 2 pm of 8 August 2018, a call came to the officer- in-charge, Chirundu, Zambia police station directing that Biti and his companions be surrendered to the Zimbabwean authorities at Kariba border post and not at Chirundu. He alleges that the idea of being surrendered to the Zimbabwean authorities terrified him. The State security agents’ attempt to abduct him at Chirundu caused a lot of fear in him, he claims. The United Nations High Commission for Refugees had been alerted of his case and was working with the Zambian authorities to grant his companions and him a right of free passage, according to him. He claims that Norway, the Netherlands and South Africa were willing to accept his companions and him. He states that he was in touch with diplomats and embassies across the world. He avers that the Dutch Embassy, the Norwegian Embassy and the United States Embassy offered to transport his companions and him from Chirundu to Lusaka the following day. The journey to Lusaka became abortive, according to

HH 19-22 HC 9780/18 him. He alleges that he instructed Zambian lawyers to file an urgent application with the Zambian High Court seeking that his companions and him be granted asylum, or that, if there was any decision to deny them asylum, that the same be reviewed. The Zambian High Court, he states, issued the order at 12 noon of 8 August 2018. The order, he claims, directed the Zambian Immigration Department to present Biti and others at the High Court in Lusaka at 8 am of 9 August 2018. He states that Zambian refugee law provides that a person who claims asylum is not obliged to act for seven (7) days. He alleges that international law provides that a person who seeks political asylum cannot be returned to the country from where he is fleeing. He claims that, where an application for asylum has been denied, the applicant has the right to appeal or review. Zambian Immigration and Deportation Act, [ Chapter 123], he avers, provides that one cannot be deported without due process or without the issuance of a valid deportation order which is known as a warrant of deportation or Form

16. He states that the officer-in-charge at Chirundu police station, Zambian side, hid Biti and his companions at the police station for the night. He claims that at 4 am of the following day, two legal practitioners from Zambia gave his companions and him a copy of the court order which had been served on the Zambian: i) Minister of Foreign Affairs ii) Minister of Home Affairs iii) Director-General of Police - and iv) Director-General of Immigration. He avers that at 5 am four or five Zimbabwean details came to where his companions and him were hiding, pointed at Tawanda Chitekwe, Ngobizitha Mlilo and him. He alleges that he waved the court order which he had and insisted that he was not going to go anywhere without their legal representatives and without guarantees that he would be taken to Lusaka. The details, he claims, left and returned a little while later with three soldiers who were dressed in Afghan or Syrian style. He states that he realised that, if he resisted, the soldiers would shoot at his companions and him. He alleges that his companions and him involuntarily got out of their hiding place and he kept on demanding to know where they were being taken to as well as where their lawyers were. He claims that he was made to ride on to a Zimbabwean car and they were driven straight to the border. He avers that, when the car in which he was stopped outside the border, he screamed and waved a flag indicating that he was being abducted and that the only place he should be taken to was Lusaka High Court before JUSTICE YANGAYILO. The security agents from Zimbabwe and Zambia did not listen

HH 19-22 HC 9780/18 to him, according to him. He alleges that his companions and him were driven through a little road which does not cross the bridge but goes through a mountain to Chirundu police station, Zimbabwean side. He states that, when they were ushered into the police station, he screamed indicating that he was being abducted and he waved his court order. He avers that he was taken into an office from where Chief Superintendent Jealosy Nyabasa recorded, through his legal practitioner, a warned and cautioned statement from him. He claims that he told Mr Nyabasa that: i) he had been abducted- and ii) his presence in Zimbabwe was unlawful He states that he handed the court order to Mr Nyabasa together with the letters from his legal practitioners which indicated service of the court order on the authorities in Lusaka. He claims that 90% of the contents of his warned and cautioned statement was devoted exclusively to his protest and his indication that he had been abducted as well as that the proceedings were illegal and that he should be in Zambia. He alleges that, after the statement had been recorded from him, he was put onto a Toyota Quantum motor vehicle with more than fifteen (15) armed officers guarding him and was driven to Harare. He was, according to him, arraigned before the first respondent who is a magistrate on the afternoon of 9 August,

The above-mentioned matters constitute the context in terms of which this application must be considered. The application, lit has already been stated, was filed under s 26 of the High Court Act [ Chapter 7:06] (“the Act”). The section confers power on me to review all proceedings and decisions of all inferior courts, tribunals and/or administrative authorities which are in this country and, where warranted, to correct such or set them aside. As is evident from papers which Biti filed, he is moving me to review unterminated proceedings of the court of the magistrate. SECTION 29 (2) (b) (iii) of the Act allows me to do so as well. It reads: “If, on a review of any criminal proceedings of any inferior court or tribunal, the High Court considers that the proceedingsa) …………………………….. b) are not in accordance with real and substantial justice, it may, subject to this sectioni) ……………: or ii) …………….:or iii) Set aside or correct the proceedings of the inferior court or tribunal or any part thereof or generally give such judgement or make such order as the inferior court ought in terms of any law to have given …on any matter which was before it in the proceedings in question; or iii) …………………..”.

HH 19-22 HC 9780/18

I decided to hear this application for review not because I consider that the decision of the court a quo was not in accordance with real and substantial justice. I heard it at the instance of Biti who alleges that the proceedings of the magistrate were not in accordance with real and substantial justice. He moves me to set them aside and order a permanent stay of his prosecution. I cited the section merely for purposes of showing the source of the power which I have to review unterminated proceedings of the magistrates’ court. Whether or not the proceedings in question constitute a miscarriage of justice as Biti alleges will become clear in this judgement. My view is that they do not. My power to review unterminated proceedings of inferior courts and tribunals as well as administrative authorities does not lie only in s 29 of the Act. Case authority supports the provisions of the Act. It was, for instance, stated in Dombodzvuku & Anor v Sithole 2004

(2) ZLR 242 at 245 B that: “The power of this court to review criminal proceedings of the magistrates’ court at any stage of proceedings in the lower court is not in dispute. Section 29 of the High Court Act [Chapter 7:06] grants this court extensive power to review the criminal proceedings of the magistrates’ court. It is specifically provided in s 29 (4) that this court or a judge of this court may, mero motu, call for a record and review the criminal proceedings of the lower court if it comes to the court’s or the judge’s notice that any such proceedings may not be in accordance with real and substantial justice. The powers conferred on the High Court and its judges by this section can be exercised at any stage of the proceedings”. The Supreme Court and this court later qualified the wide discretion which this court conferred upon itself to interfere with unterminated proceedings of the inferior courts, tribunals or administrative authorities. It was, for instance stated, in Attorney General v Makamba 2005