via ZLHR: Magistrate Puts Brakes on Persecution of GALZ February 26, 2014 at 3:05pm
HARARE Magistrate Donald Ndirowei on Wednesday 26 February 2014 put some brakes on the judicial persecution of Gays and Lesbians of Zimbabwe (GALZ) represented by the organisation’s chairperson Martha Tholanah by quashing charges of running an “unregistered” organisation.
Magistrate Ndirowei granted the application for exception to the charge filed by Tholanah’s lawyer Tonderai Bhatasara of Mupanga Bhatasara Attorneys, a member of Zimbabwe Lawyers for Human Rights (ZLHR). In objecting to the charge of running an “unregistered” organisation, Bhatasara argued that the charge doesn’t disclose an offence or the commission of an offence in view of the High Court order which was granted last month by Justice Priscilla Chigumba exempting GALZ from registering under the PVO Act.
In his application filed on Monday 24 February 2014 and which was opposed by the State, Bhatasara argued that the charge of contravening Section 6 (1) (3) of the Private Voluntary Organisation (PVO) Act Chapter 17:05 was vague and improperly constructed.
Tholanah had on Monday 24 February 2014 pleaded not guilty to charges of running an “unregistered” organisation when her trial finally commenced after suffering several false starts.
Magistrate Ndirowei ruled that GALZ is not obliged to register under the PVO Act and therefore the State could not prosecute the organisation as the High Court order issued last month exempting it from registering is still binding.
The Magistrate said he could not be seen interfering with a ruling of a superior court.
Prosecutors preferred charges of running an unregistered organisation against Tholanah in August 2012 after police raided and conducted a search at the GALZ offices in Harare. The prosecutors claimed that Tholanah unlawfully took part in the management of GALZ by gathering the organisation’s members and continued to carry out activities while “engaging in gays and lesbians activities” in contravention of the PVO Act.
The search at the GALZ offices was preceded by instances of police harassment of members of GALZ while some materials including computers and fliers were confiscated.
But on Tuesday 14 January 2014, Justice Chigumba ordered Police Commissioner-General Augustine Chihuri, Chief Superintendent Henry Dhowa, Detective Chief Inspector Runganga, Detective Assistant Ben Justen, and the Minister of Home Affairs to return the GALZ property. The granting of the order came after Bhatasara filed an application in the High Court in October 2012 seeking the release of the property, arguing that it was not linked to the commission of any crime. The Zimbabwe Republic Police had opposed the application and argued that it would not release the property until the completion of their probe and because they wanted to use the items as exhibits in court.
Justice Chigumba also declared invalid and set aside the warrant of search and seizure issued by Dhowa and executed by Runganga and Justen when they raided the GALZ offices. The search and seizure, the High Court Judge said, was unlawful and contravened the rights of GALZ as specified in Section 17 of the former Constitution of Zimbabwe and Section 57 of the current Constitution of Zimbabwe.
The High Court Order further stated that GALZ is not obliged to register in terms of the Private Voluntary Organisations Act [Chapter 17:05] as it is not a private voluntary organisation and is specifically exempted by the Act.
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