via Prosecute Mutambara, ConCourt rules – NewsDay Zimbabwe November 19, 2015
Former Deputy Prime Minister Arthur Mutambara is set to be prosecuted on contempt of court charges after the Constitutional Court (ConCourt) yesterday dismissed his application seeking a stay of prosecution.
BY CHARLES LAITON
Mutambara had approached the ConCourt challenging his arrest, sometime in 2008, on contempt of court charges following an article he wrote and caused to be published titled A shameful betrayal of national independence, in which he attacked High Court judge Justice Tendai Uchena’s judgment.
In the article, Mutambara was quoted as having said: “In terms of the House of Assembly (sic), the agenda is to seize at least nine seats from the opposition through recounts and court action leading to re-runs. This explains the 23 recounts Zec [Zimbabwe Electoral Commission] had instituted. There is clearly criminal collusion between Zec and Zanu PF.”
He added: “To add insult to injury, this unlikely marriage is dutifully consummated by a compliant and pliable judiciary typified and exemplified by Judge Tendai Uchena’s unreasonable and thoughtless decision not to order Zec to release the Presidential results.”
Justice Elizabeth Gwaunza’s judgment, which was delivered yesterday, although Mutambara had, in fact, made his political statement very clear, he, however, proceeded to attack the judiciary.
“The first part of the statement, in my view, had political overtones, the like of which one may expect and does, in fact, hear from political opponents,” she said.
“The applicant, however, did not stop there. He went on to draw the judiciary, and the High Court in particular, into the perceived conspiracy between Zanu PF and Zec. From commenting on a factual situation, that is, the vote recounts, he proceeded to confidently ‘predict’ what would happen should any challenge to the vote recounts be mounted by the opposition.”
Justice Gwaunza added: “Using strong language that, in my view, and as rightly submitted by the respondent (the Attorney-General), fell outside the limits of ‘reasonable courtesy and good faith’, he charged that the judiciary — accused by him of being ‘compliant and pliable’ — would dutifully ‘consummate’ the unlikely marriage between Zanu PF and Zec.”
The court said while the part of Mutambara’s statement that cast aspersions on Zec’s recounting of the votes and the alleged Zanu PF “agenda” could, for the reasons, fall within the ambit of a political statement, it was of the view that the same could not be said of the part that denigrated the judiciary and the High Court.
“I do not doubt that it transcended the ‘political’ arena and became a direct attack on the judiciary,” Justice Gwaunza said. “I, therefore, dismiss this argument to the extent that it was meant to justify the denigration of the judiciary on that basis of the statement being incidental and therefore not seriously meant.
“Accordingly, I find the arrest of the applicant, which was effected under the impugned law, did not translate into a violation of the applicant’s right to freedom of association . . . it is accordingly ordered as follows: The application be and is hereby dismissed.”
Mutambara could not be reached for comment yesterday, as his mobile phone was unreachable.