State v MDC-T Chief Elections Agent Morgen Komichi

It is a trite principle in most progressive jurisdictions that a decision to prosecute must meet both the evidentiary and public interest tests. For example, if a case meets the evidentiary test, the public prosecution authority has to further decide whether a prosecution is needed in the public interest. They must balance factors for and against prosecution carefully and fairly. In country where state-sponsored murderers from the 2008 elections are still on the loose, the question that cries out for answers in the Komichi case is whether it is in public interest for the prosecution to go all this way in pursuing him? Some analysts feel that he has been chosen as a whipping boy or sacrificial lamb. Under the archaic English culture, a whipping boy was a young boy who was assigned to a young prince and was punished when the prince misbehaved or fell behind in his schooling.

Following is the dark underbelly of the Komichi case as outlined in the Veritas Trust Bulletin.

Background

Early “special voting” The casting of early “special votes” by members of the uniformed forces and officials of the Zimbabwe Election Commission [ZEC], whose duties would entail their being out of their constituencies on the 31st July polling day and therefore unable to cast their votes on that day, was provided for in the newly amendment Electoral Act. The 14th and 15th July were set aside for this exercise and ZEC had prior to these dates authorized 63 268 individuals to cast special votes. ZEC had very little time to complete the necessary arrangements, with the result that over 27 000 special voters were unable to vote because their ballot papers did not reach the designated special voting centres. [See Bill Watch 31/2013 of 25th July]

Procedure for special voting: If authorized by ZEC to cast a special vote, a voter had go to the special voting centre specified by ZEC. At the voting centre ZEC officials should have had waiting for the voter a tamper-proof envelope bearing the voter’s name and containing another brown envelope, inscribed with the voter’s constituency and ward only, and the blank ballot papers to be used by the voter. Before being handed to the voter, each ballot paper would be stamped by a ZEC official with a secret mark, to indicate its authenticity. The voter would then take his or her ballot papers and the brown envelope to the voting compartment, mark the ballot papers in the normal way, place them in the envelope and seal it before depositing it in the ballot box. At the conclusion of special voting ZEC would sort the contents of the ballot boxes, without opening the envelopes, and ensure the secure distribution of every envelope, still unopened, to the appropriate ward in the appropriate constituency. The envelope would eventually be opened at ward level on 31st July after the close of polling, and the ballot papers inside it would be included in the count of votes in the ward return.

Extension of special voting : On Tuesday 23rd July, ZEC lodged an urgent application with the Constitutional Court for authority to allow the disappointed special voters to cast their votes on 31st July, despite an Electoral Act provision expressly forbidding this.

MDC-T’s Chief Elections Agent, Mr Morgen Komichi, Deputy National Chairperson of the party, and at that time a Senator, was responsible for liaising with ZEC on behalf of the party during the election period. On 25th July, a few days before the 31st July polling day, Mr Komichi called ZEC’s Deputy Chief Elections officer Mr Utoile Silaigwana and asked him to arrange a meeting between Mr Komichi and ZEC Chairperson Justice Rita Makarau. Mr Silaigwana did so and on the afternoon of 25th July, Mr Komichi met Justice Makarau and ZEC Commissioners Feltoe and Gambe; also present were ZEC’s Chief Elections Officer Sekeramayi, two of his deputies and other ZEC officials including ZEC’s chief law officer.

At the meeting Mr Komichi produced a tamper-proof envelope inscribed with the name of ZRP Constable Chiginya and Mount Pleasant special voting centre. It contained a second envelope, inscribed with the voter’s constituency and ward, inside which were three special vote ballot papers marked in favour of MDC-T candidates in the Presidential, Parliamentary and council elections. There was a discussion and the envelope and its contents were passed round the table and thereafter retained by Justice Makarau, who said it was confiscated and might be used as evidence in a court of law.

The Constitutional Court, despite opposition from MDC-T, granted ZEC’s application to extend special voting on Friday 26th July

Mr Komichi was arrested at his home in the early hours of the morning on Sunday 28th July and taken to Harare Central Police Station. Mr Komichi says that he was not told that he was an accused person. In the absence of his lawyer, he signed a lengthy affidavit in the belief that he was to be a witness in the case. Only when he was later made to sign a warned and cautioned statement, again in the absence of his lawyer, did Mr Komichi realize that he was in fact an accused person. He remained in custody until the next day. [Comment: his lawyer later complained that this was an improper procedure.]

Mr Komichi was taken to the magistrate’s court on Monday 29th July and remanded on charges of fraud [section 136 of the Criminal Law Code] and unlawfully interfering with a ballot box or packet of ballot papers in use for the purposes of the election [section 85 (1) (e) of the Electoral Act]. He was remanded in custody, having been denied bail [see below for bail proceedings].

A ZEC press statement was published in the newspapers that same Monday, headed ”Lost Special Vote Ballot Paper: Complaint against Mr Morgen Komichi of MDC-T”. In it ZEC explained that after its meeting with Mr Komichi it investigated the matter and concluded that his story was “not credible”, causing ZEC to have “severe reservations regarding the details he provided to the Commission”. ZEC had therefore handed over the matter to the police for investigation.

The statement went into detail about the meeting, including that Mr Komichi had volunteered that the tamper-proof envelope was sealed when handed to him by a person he declined to name who had informed him that the envelope had been picked up from a dustbin at the Harare International Conference Centre where the special votes were being processed. The statement went on to say Mr Komichi had opened it “because he was curious”, and also opened the second envelope inside it which contained the three ballot papers.

They also said their internal investigations had revealed that a special vote had been authorized to the person whose name was recorded on the outer envelope. The voter had told ZEC’s investigator that when he went to vote he was turned away because his envelope could not be located. ZEC registered its concern that Mr Komichi had taken a day to bring the matter to its attention and only did so after attaching copies of the ballot paper in his opposition to ZEC’s application to the Constitutional Court. It also said it was clear that the ballots had not been marked by the voter. [Comment: a press statement of this one-sided nature was unfortunate in the event of Mr Komichi being brought to trial.]

Bail Applications

Initial bail application in the magistrate’s court

29th July At his first court appearance on 29th July Mr Komichi’s lawyer Andrew Makoni applied for bail, submitting that he was a suitable candidate for bail and, and as the MDC-T Chief Elections Agent would be needed by his party during the elections. The State opposed the granting of bail, arguing that he was a flight risk and facing a serious offence that had the potential to discredit ZEC and the entire electoral process. The investigating officer told the court that releasing Mr Komichi on bail could compromise police investigations, still in their initial stages.

30th July Magistrate Anita Tshuma dismissed the bail application and remanded Mr Komichi in custody. She accepted that investigations were still in their early stages and that if released Mr Komichi was likely to interfere with witnesses. She also held that it was important to maintain a peaceful environment pending the elections and that Mr Komichi’s release “could cause commotion and compromise the peace”. Mr Komichi was committed to Chikurubi Maximum Security Prison.

Appeal to the High Court against magistrate’s bail decision

31st July Mr Komichi’s lawyers filed an appeal in the High Court against the magistrate’s refusal of bail. The matter was set down to be heard on 6th August but was postponed to 7th August because the State only filed their opposing papers on the morning of the hearing.

8th August After considering both State and defence submissions, Justice Hlekani Mwayera upheld the magistrate’s decision and dismissed Mr Komichi’s appeal. There could be no further appeal to the Supreme Court, because Mr Komichi’s alleged offences fall outside the short list of cases in which section 121(8) of the Criminal Procedure and Evidence Act permits a second appeal.

Trial date set and fresh bail application made 10th August At a routine remand hearing the magistrate set Mr Komichi’s trial down to commence on 27th August.

16th August Mr Komichi’s lawyers made a fresh application for bail in the magistrate’s court citing changed circumstances. According to section 116(1)(c)(ii) of the Criminal Procedure and Evidence Act even if bail has been refused by a court, a further application for bail may be made if it is based on new or different facts from the previous application. The lawyers argued that the setting of a trial date was an indication that the police had had sufficient time since the last application to investigate the case., and that, as the elections were over; the results announced and the SADC Observer Mission preliminary statement had been released, Mr Komichi’s release could not affect the electoral process in any way. The State opposed the application, claiming that issues around the election had not yet been finalised because the validity of the Presidential election was being contested in the Constitutional Court [at this time Mr Tsvangirai’s notice withdrawing his election petition was only filed in the Constitutional Court later that day]

20th August The magistrate dismissed the bail application, ruling that because the validity of the Presidential election was still before the courts, Mr Komichi could not be released. [Comment: Although Mr Tsvangirai’s withdrawal was filed on 16th August, the Constitutional Court had announced there would be a hearing, as stipulated by new Constitution, on 20th August; and declared President Mugabe duly elected on Tuesday 21st August.]

20th September Defence lawyer Alec Muchadehama made another application for bail, citing changed circumstances : the election was now over and the evidence led so far [the trial started on 27th August] had disproved the State’s claim that the person named by Mr Komichi as the source of the envelope does not exist.

23rd September The magistrate dismissed a renewed bail application made on 20th September. The prosecutor had opposed the granting of bail. The magistrate said that, as the prosecution case is strong and the charges are serious, Mr Komichi is a flight risk.

Start of Trial: 27th August

On 27th August Mr Komichi’s trial began in the Harare Magistrate’s Court, presided over by magistrate Tendai Mahwe with Mr Alec Muchadehama of Mbidzo, Muchadehama and Makoni Legal Practitioners appearing for Mr Komichi, and Mr Michael Mugabe, assisted by Mr Michael Reza and Mr Michael Murombedzi, appearing for the prosecution.

Mr Komichi entered pleas of not guilty to both charges put to him:

1. Fraud, in contravention of section 136 of the Criminal Law Code, which carries a penalty of up to thirty-five years imprisonment or a fine not exceeding $5000 or both a fine and imprisonment. The allegation is that Mr Komichi misrepresented to ZEC that he had picked up, from a bin at the Harare International Conference Centre, a grey tamper-proof plastic envelope containing three ballot papers for the Presidential, National Assembly and council elections purporting that Constable Mugove Chiginya, a member of the Zimbabwe Republic Police, had cast his vote in favour of MDC T candidates during the special voting exercise at Mount Pleasant polling station.

2. Interfering with ballot papers, in contravention of section 85(1)(e) of the Electoral Act, which carries a penalty of imprisonment for up to three years, without the option of a fine.

The prosecutor said he would be calling twelve witnesses.

Mr Muchadhama objected to his client being brought to court in leg irons and the magistrate ordered their removal.

The trial is proceeding.