Passmore Mandikuwaza v Nicodemus Chibvura and Zimbabwe National Liberation War Veterans Association and Officer in Charge ZRP, Nyamaropa and Officer in Charge ZRP, Nyanga District and Commissioner of Police and The Zimbabwe Electoral Commission and Nyanga Rural District Council

### Preamble
1
HH 220-12
HC 3645/08
PASSMORE MANDIKUWAZA
versus
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==============================

PASSMORE MANDIKUWAZA
versus
NICODEMUS CHIBVURA
and
ZIMBABWE NATIONAL LIBERATION WAR VETERANS ASSOCIATION
and
OFFICER IN CHARGE ZRP, NYAMAROPA
and
OFFICER IN CHARGE ZRP, NYANGA DISTRICT
and
COMMISSIONER OF POLICE
and
THE ZIMBABWE ELECTORAL COMMISSION
and
NYANGA RIRAL DISTRICT COUNCIL

HIGH COURT OF ZIMBABWE
HUNGWJE J
HARARE, 15, 17 and 22 July, 10 September 2008

Urgent Chamber Application

D Terera, for the applicant
J S Mandizha, for the 1st and 2nd respondents
GC Chikumbirike, for the 6th respondent
Mrs V Mabhiza, for the 3rd, 4th, 5th & 7th respondents

HUNGWJE J this is an application for a provisional order by the applicant in the following terms:-

“TERMS OF TIMBER OF THE ORDER SOUGHT AND GRANTED

Pending the finalization of this matter:

1. The sixth and seventh respondents or anybody claiming through them be and I hereby interdicted from processing or acting upon the affidavit of resignation filed and signed by the applicant on 5 July 2008 at Nyamaropa.


2. The first, third, fourth and fifth respondents and anybody claiming through them be and are hereby interdicted from harassing, intimidating, assault and applying unlawful pressure or his lawful agents with the aim of affecting his political or lawful activities.”

In his founding affidavit, the applicant alleges the following facts as giving rise to an entitlement to the order he seeks on a provisional basis. He is a duly elected councillor of ward 12, Nyanga North. He won it on an MDC ticket. The first respondent is the losing parliamentary candidate for the Nyanga North constituency. The second respondent is the national association for veterans of the liberation struggle of Zimbabwe. The third to fifth respondents are police officers. S6 the respondent is ZEC but was substituted for the district administrator for Nyanga district for which the seventh respondent is the local authority.

The events relevant to this application occurred on 3 July 2008 when the applicant claims that officers from the third respondent’s station picked him up and detained him at ZRP Nyamaropa station. There he was detained for two days on allegations that:

(a) He set up a base camp for the MDC;
(b) He and others destroyed a ZANU PF base;
(c) He does so did the police constable;
(d) He stole in cuts and a button stick;
(e) He raped a female member of the special police constabulary.

He denied all the allegations. He told the police that he needed to advise his legal practitioner. He was not afforded conduct with his lawyers for two days. Of 5 July 2008 the respondent called him to her office. There applicants or members of the second respondent were included one Anthony Nyaguse. The applicant alleges that the third respondent advising that of the charges against him would be dropped if he resigned his seat as counsellor and chairman for ward 12. He refused to resign. When he was afraid to the cells he alleges that he was assaulted by police officers we can identify by name.

Later that day, he was ordered by the respondent to sign an affidavit in which he reportedly resigns his seat as counsellor for ward 12 Nyanga North. Members of the second respondent were present. He was advised that if he does not sign the affidavit, he would be “pruned” and that if they did not kill him, they will ensure that the charges levelled against him would stick by bringing credible witnesses to lie against him. Fearing such an eventuality, he had signed the affidavit. As a result, he was released from custody.

Immediately upon release, he contacted his lawyers who addressed and later notifying the sixth and seventh respondents about the void “affidavit of resignation.” His fear is that the seventh respondent was making counsellors any time and that acting upon the purported affidavit of resignation he will lose his seat unlawfully.

First respondent gave a flat denial of the allegations against him. In any case since the applicant had not been sworn into office no point would be served by forcing him to swear to an affidavit of resignation as claimed, so his argument went. If I understood his argument correctly, which I believe I did, he is opposed to the grant of an order based on allegations that he participated in unlawful acts coercing the applicant into an act of alleged resignation. Put differently, he does not dispute the applicant’s entitlement to the exercise of his councillorship.

Second the respondent was not properly served and therefore not represented at the hearing. Being a lawful association I will assume in its favour that it will abide by the order which this court will make. I will not comment on the alleged involvement of the association in this saga because I am of the view that since no specific allegations are made against the association, there can be no basis for maligning the association in the manner the applicant has done. It is separate from its members. Those of its members involved in illegal acts should answer for themselves in their personal capacity. There is no allegation that the applicant is unable to personally identify individuals who harassed him in the manner he claims.

The third and fourth respondents dispute the applicant’s allegation of their involvement in the alleged coercion. In separate affidavits the police say their only involvement regarding the applicant went so far as an investigation into his involvement was concerned. According to them, the applicant is implicated in acts of political violence ranging from assault to theft of police crowd control accessories. They hold him to be a fugitive from justice as he is wanted in connection with investigations into these allegations. As far as the police are concerned when the applicant approached their office regarding his wish to resign political office of councillor, he was referred to ZANU PF offices for assistance. I did not detect real any opposition to an order which guarantees the preservation of the applicant’s political and civil rights pending a final determination of the parties’ rights. Nor is the applicant entitled to an order which will hinder a fair investigation of criminal conduct. A balance between the right to protection of the law, as entrenched in s 18 of the Constitution of Zimbabwe, and the duty of the police to investigate crime.

The sixth respondent took a point regarding misjoinder. It is this. Since it is not involved in the resignation of councillors, it was wrongly joined in this application. The point was well taken. The applicant withdrew its application against the sixth respondent. The applicant should have tendered costs.

The applicant substituted ZEC with the District Administrator, Nyanga but no service appears to have effected on that office or, if it was, the officer holding the position did not bother to respond. In the result I will assume that he will abide by the order of this court.

It seems to me that the real fear which sparked urgency was the “affidavit of resignation” as well as other threats offered to applicant by either the police or politicians from the losing party. It is appropriate to recite that the first generation of civil and political rights restricts what others (including the state) may do, for example, life, liberty, and freedom from torture. (See the Universal Declaration of Human Rights 1948). In the event therefore, due recognition of those rights is an imperative for these courts. Where such rights are threatened, whether by state or non-state actors, the courts should be ready to grant relief in a manner that balances all the competing interests. The rather dramatic method resorted to by applicant illustrates the fear of irreparable harm, (loss of his new office of councillor!) entertained by the applicant at the time he launched this application.

In light of the attitude displayed by the other respondent, which assures the court of due respect of the civil and political rights of others, I will grant an order protective of the rights of the applicant until the matters he raises are fully ventilated on the return day.

I therefore issue the following order:

Pending the finalization of this matter:

1. The sixth and seventh respondents (“the District Administrator” and “Nyanga Rural District Council”) or anybody claiming through them be and is hereby interdicted from processing or acting upon the affidavit of resignation signed by the applicant on 5 July 2008 at Nyamaropa.


2. The first, third, fourth and fifth respondents and anyone claiming through them be and are hereby interdicted from unlawfully interfering with the applicant’s concillorship or the lawful discharge of his duties as councillor for ward 12, Nyanga North.

3. The applicant to pay ZEC’s wasted costs.

*Mwonzora & Associates*, legal practitioners for the applicant
*Mandizha & Company*, legal practitioners for the 1st respondent
*Civil Division of the Attorney-General’s Office*, 3rd, 4th 5th respondents’ legal practitioners
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