Disclose informant, prosecution told | The Herald April 4, 2016
Fidelis Munyoro Chief Court Reporter
Two Harare women accused of unlawful possession of 25,9 kilogrammes of raw ivory valued at $6 475 have launched an application to force the prosecution to reveal the informant in what is expected to be a landmark constitutional case.
Winnet Munyonga (36) and Chiedza Chiutsi (33) were arrested in December last year when police searched their vehicle and recovered eight uncut pieces of ivory.
The women had parked their car along Robert Mugabe Way and were searched when they returned to the car some hours later.
Police say they received the information from an unnamed informant.
However, before the women entered their plea, they asked the prosecution to reveal the name of the informant so that he could explain how he knew they had ivory when they were not aware of its existence in the vehicle.
The prosecution opposed the request and the presiding magistrate Mr Tendayi Mahwe, upheld the State’s position.
The women who now contend that this refusal violates three constitutional rights, have hired Adv Tawanda Zhuwarara, a top constitutional advocate, to argue their case.
In an application filed in the Constitutional Court on Friday, they listed the Prosecutor General and Mr Mahwe as respondents in the matter.
They claim that Section 62 (2) of the Constitution gives every person the right access to any information held by any person, including the State, in so far as the information is required for the exercise or protection of a right.
“The identity of the informant is key information to our defence as it may very well shed light on who planted the ivory in the car or even expose the informant as the one who placed the ivory in the car,” says Manyonga who deposed to an affidavit adding that Section 70 (1) (h) of the Constitution also affords every accused person the right to adduce and challenge evidence.
“As it stands the police acted on certain evidence that we were in possession of ivory, such was corroborated with the discovery of ivory in the vehicle,” she states. “We cannot challenge this evidence without interrogating how the informant knew there was ivory in our vehicle. To challenge such evidence, the identity of the witness should be revealed, so that we may subpoena him or her and challenge the information and evidence he or she gave the police.”
Further, the women argue that Section 70 (1) (c) of the Constitution, also affords a suspect the right to be given adequate facilities to prepare a defence.
“In order for our counsel to fashion a defence we need to be able to explain away the discovery of ivory in the vehicle we were using. Our only cogent explanation is that it is the informant who ought to have placed the ivory in the car, but we cannot motivate such defence in the absence of the identity of the informant.”
Manyonga also contend that the provisions they cited establish the two have a right to know who the informant is and what he or she told the police.
The refusal by the prosecution to name the informant, the women argue, violates their rights and a declaratory order to that effect must be issued. Further, the women contend that the violations against their rights were impermissible under the current Constitution.
“To my knowledge there is no rule of law that entitles the Prosecutor General to withhold the identity of an informant from us more so when we are facing serious charges.”
The two brought the constitutional application in terms of terms of section 175 (4) of the Constitution after the magistrate rejected their request to have the matter referred to the Constitutional Court on March 30.
They argue that the magistrate’s refusal to refer the matter to the Constitutional Court was wrong in the circumstances and violated their right to approach the court.
Such right, they say, is enshrined in s 69 (3) of the Constitution.
“The second respondent’s (magistrate) cavalier refusal is improper as there was nothing frivolous or vexatious about our request,” says Manyonga.
Allegations against Munyonga and Chiutsi are that on December 12, Detective Assistant Inspector Kufa of CID Drugs picked information from a reliable informer that the two were in possession of raw ivory.
The court heard that Det Kufa teamed up with Det Sgt Murahwa and reacted to the information. It is alleged that they rushed to the scene and spotted the vehicle, a gold-coloured CRV parked on the right side of Robert Mugabe Way.
The court heard that there was no one in the vehicle and Det Kufa and Det Sgt Murahwa waited next to the vehicle for the return of the occupants. The two entered into the vehicle and Munyonga allegedly sat on the driver’s seat while Chiutsi sat on the front passenger seat.
It is the State’s case that the detectives approached Munyonga and Chiutsi and informed them of the purpose of their visit and they both consented to the vehicle search.
During the search the detectives recovered eight pieces of raw ivory which were inside a blue sack.