Their lawyer Innocent Chagonda of Atherstone and Cook made the application Tuesday at the Harare Magistrate Courts, where he challenged the constitutionality of section 31 of the Criminal Law Codification and Reform Act.
“We believe that it is utterly unfair for our clients to plead to a charge which is wholly unconstitutional. We submit that it is important for the Supreme Court to weigh the constitutionality of section 31 since it is a matter of public interest,” said Chagonda before Magistrate Moses Murendo.
“Do we really need a law that sends a person to prison for 20 years for reporting that which is in the public domain? What the journalists reported on were indictment papers in the MDC activists’ case in the High Court and had been made public,” he said.
The section stipulates that any person found guilty of the offence shall be liable to 20 years imprisonment or a penalty of a fine not exceeding level 14.
Chagonda argued that the said section contravenes sections of the Constitution concerned with the right to freedom of expression.
“The accused persons are journalists and as a result the matter should be heard on an urgent basis otherwise they will live in constant fear of prosecution.
"This application is by no way pure imagination, frivolous or vexatious,” argued Chagonda.
He gave an example of journalist Mark Chavunduka and another person versus the State in which the Supreme Court outlined the importance of freedom of expression.
Chagonda also challenged the State’s intention to call in witnesses from the Attorney General’s office.
“The AG’s indictment paper states that it intends to call in Michael Rutendo Mugabe, the chief law officer and Morgan Dube, a principal law officer, to testify in this matter. In this case the AG is prosecuting a matter in which he is the complainant. The AG’s office can not possibly be impartial in this case,” said Chagonda.
Jonathan Murombedzi, the lawyer representing the case, said he needed time to consider the application and file a written response; the matter will now resume on 9 July.
Kahiya and Chimakure were arrested last month following an article they published in the Zimbabwe Independent on the naming of the alleged abductors of the MDC and human rights activists.