COURT WATCH 2/2014
[4th February 2014]
The State v Human Rights Defender Beatrice Mtetwa
Part II: The Trial
Court Watch 1/2014 covered this case from Mrs Mtetwa’s arrest to set-down for trial on 10th June 2013, but not the initial tussle to get Mrs Mtetwa released from custody after her arrest. [Court Watch 4/2013 detailed the extensive bail hearings, from 17th to 25th March 2013, which ended with Mrs Mtetwa’s release from custody on 25th March.]
Commencement of Trial
Mrs Mtetwa’s trial began on 10th June, Magistrate Rumbidzai Mugwagwa presiding. Mrs Mtetwa pleaded not guilty to the charges against her, of defeating and/or obstructing the course of justice.
The State Case
State’s three key witnesses
These were the officers involved in conducting the search at Mr Mpofu’s residence and in Mrs Mtetwa’s subsequent arrest: Chief Superintendent Mukazhi, Detective Assistant Inspector Wilfred Chibage; and Detective Sergeant Ngatirwe Mamiza.
Prosecutor Tawanda Zvekare opened the State case by calling Chief Superintendent Luckson Mukazhi, of the Drug Section of the Criminal Investigation Department. He had been the officer in charge at the scene, and was the one who ordered Mrs Mtetwa’s arrest.
Chief Superintendent Mukazhi’s evidence extended over nearly two months: from 10th June till 2nd August. Its inconsistencies damaged the State’s case. When it was put to him that the police conducted the search without a search warrant, he initially stated that police were entitled to conduct a search without a warrant. Later, having stated that they did in fact produce a warrant, he admitted that Mr Mpofu’s address was not on the search warrant [Comment: The warranty was therefore defective]. He confirmed that there were no visual recordings of the search and that Mr Mpofu did not sign an inventory of what had been recovered.
Mrs Mtetwa put it to him that she could not knowingly have hindered the search, as Inspector Chibage was the only one physically conducting a search at the time of her arrival and this was at the back of the house. He admitted that Chibage could not see the gate (where Mrs Mtetwa arrived) from where he was searching. Mr Mukazhi stated that he ordered the confiscation of Mrs Mtetwa’s cell phone when he thought she was taking photographs of himself and Mamiza. He admitted that the forensic report showed that no photographs were taken, and admitted that he and Mamiza were already inside the police vehicle having completed their part of the search at the time the photos were allegedly taken.
Mr Mukazhi failed to explain how Mrs Mtetwa had delayed the search at Bath Road, and caused the removal of computers: he confirmed that they were due at Bath Road at 8.30 am, and they were still at Mr Mpofu’s residence when Mrs Mtetwa arrived well after that time around 10 am.
Wilfred Chibage The second State witness, Detective Assistant Inspector Wilfred Chibage, also gave contradictory evidence under cross-examination on 2nd September 2013. He suggested that they left the police station around 7am, arrived at Mr Mpofu’s residence just before 8 am and that Mrs Mtetwa then arrived 20 minutes later. He stated that they were delayed by about 2 hours from the time of her arrival due to her becoming “violent” and shouting at the top of her voice. When Mrs Mtetwa pointed out: that the Request for Remand Form stated that the team arrived at Mpofu’s residence at10am; that Mrs Mtetwa arrived around 10.30am; and that the State outline before the High Court stated that police arrived at the Mpofu residence between 10am – 10.30am; Chibage stated that the Court had been given false information.
In relation to the removal of computers, Mrs Mtetwa put it to Chibage that, given that that the witnesses who removed computers received their instructions at 8 am and Mrs Mtetwa only received a text from Mr Mpofu to say that police were at his house at 8.15 am, she could not have been involved. Chibage argued that it was “her behaviour” which strongly suggested she was involved. Chibageadmitted that the evidence before the High Court that she “physically restrained” them from carrying out their search, and accessing documents from in the vehicle, was false. He also agreed that Mrs Mtetwa had not prevented them from taking photographs at the scene. Chibage’s evidence further conflicted substantially with Mr Mukazhi’s evidence with regard to where and when Mrs Mtetwa allegedly took photographs. He admitted that Mrs Mtetwa was under arrest at the time of the search at Bath Road and therefore unable to interfere with the search, but then stated that she was “instilling fear in [his] whole team” by raising allegations that a junior police officer was touching her thighs in the back of the police truck at the time of the search.
On 3rd September, Mrs Mtetwa questioned Chibage on whether he was aware that the Law and Order section had been looking into her immigration status, potential complaints against her at the Law Society, and her marital status: all completely unrelated to the case against her. She suggested that such irrelevant but personal investigations showed that the prosecution was not genuine, but was brought to dissuade her and other lawyers from representing such persons as Thabani Mpofu.
Ngatirwe Mamiza The State’s third witness, Detective Sergeant Ngatirwe Mamiza, gave evidence on 24th September 2013. He stated that Mrs Mtetwa had closed the gate to prevent Chibage from leaving the property, and then taken photographs of himself and Mr Mukazhi. When Mamiza was ordered to confiscate her phone, she placed it inside her bra and seemed to delete photographs before handing it over. His evidence was that he was not able to complete his search as he was “confused” by Mrs Mtetwa’s behaviour.
Final State Witnesses
Further state witnesses included Taisekwa Tembo, the policewoman who searched Mrs Mtetwa at Bath Road, and Brian Mutusva, a computer technician at the MDC office. Ms Tembo testified to having been left single-handedly with Mtetwa in her custody in a car outside 14 Bath Road, while the others led by Chief Superintendent Mukwazhi and Chibage searched the premises. The final state witness Brian Mutusva told the court that he received instructions to move computers from 14 Bath Road from the chief press officer in the former PM’s office. He confirmed that Mrs Mtetwa did not interact with him or have anything to do with the computers’ removal.
Inspection in Loco
Mrs Mtetwa’s trial culminated in an inspection in loco at the scene of her arrest, Mr Mpofu’s residence, in Westgate on 24th October 2013. During the inspection each of the key State witnesses,Mukazhi, Chibage and Mamiza, were asked to describe Mrs Mtetwa’s and their own movements at the scene of the alleged crime. Their accounts contradicted each other substantially:
- · Mukazhi stated that that Mrs Mtetwa came about 1.7 metres inside the gate to greet Mrs Mpofu, moved a few paces forward then started the commotion: this involved shouting and pacing frocmleft to right, which went on for 5 – 10 minutes. He stated that Mrs Mtetwa was outside the gate when taking photographs, and that Mamiza and himself were inside the vehicle at the time: he then told Mamiza to get out to confiscate her telephone and arrest her;
- · Chibage stated that at the time of the commotion Mrs Mtetwa was pacing back and forth (as opposed to left and right). He stated she was inside (as opposed to outside) the gate when taking photographs; and
· Mamiza stated that Mrs Mtetwa was 5.9 metres from the gate when she was pacing back and forth, and that the commotion lasted for 2 to 3 hours. He said that she took photographs outside the gate. He also stated that he was standing next to the car at the time of her taking photographs, not inside the car.
Application for Discharge
Upon the close of the State’s case on 24 October 2013, the Defence submitted an application for discharge on the basis that the State had failed to adduce evidence of the commission of the offence with which Mrs Mtetwa had been charged. Magistrate Mugwagwa requested the Defence to file written submissions by 4th November and the State to submit its response by 11th November. She said her ruling would be handed down on 26th November.
Not Guilty Verdict
On 26th November 2013, Magistrate Mugwagwa granted the Defence’s application for discharge, and found Mrs Mtetwa not guilty of defeating and/or obstructing the course of justice. She held that Mrs Mtetwa had done nothing to interfere with the investigations the police were conducting; that the police testimony had been contradictory and was not enough to put Mrs Mtetwa on her defence; and the State had adduced no evidence that Mrs Mtetwa had stopped or interfered with the search. She found that the inspection in loco established that Mrs Mtetwa could not have interfered with any search going on, as she could not see what was happening from the position where she was arrested. She clarified that it is not an offence to take photographs and, in any case, the forensic examination confirmed that no photographs of the scene were taken using Mrs Mtetwa’s phone.
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