This law is an ass, says an angry MDC

HARARE – Opponents of President Robert Mugabe's Zanu-PF and human rights activists are ganging up to fight the draconian Section 121 of the Criminal Evidence and Procedures Act, which lawyers say is being used to oppress the people.

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Section 121 empowers the Attorney-General to appeal against a court decision to grant bail, and, if invoked, the decision of the magistrate or judge will be suspended and the AG has seven days to appeal against the bail ruling while the accused remains in custody.

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If the AG or his representative does not appeal within seven days, the accused person can be released. The accused person can also be released if the courts throw out the appeal.

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What has irked Mugabe’s opponents and human rights defenders is that the draconian law, which dates back to 1898, has been used against opponents of Mugabe or those who would have been perceived to have crossed his path.

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Since the beginning of the year, the law has been used on 30 people – all of them Zanu-PF opponents, including Energy Minister Elton Mangoma, MDC MP Douglas Mwonzora and Mthwakazi Liberation Front leaders, John Gazi, Charles Thomas and Paul Siwela.

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The Sunday Times understands that MDC ministers and backbenchers are planning an attack on the law by proposing a motion in parliament to have it repealed.

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An MDC MP confirmed the move on Friday. “We are tired of this law, because it is being used against MDC officials and human rights defenders.

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“It has to be repealed because it is being abused. It is a good law in a democracy, where it would be used against rapists and murderers.

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“But in our situation, it is being used against Mugabe’s opponents and this is unacceptable and we have to have it repealed,” the MP said.

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Deputy Minister of Justice Obert Gutu agreed that the section was being abused by some people in government and said he would, as an MP, support the idea of having it repealed.

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“It is being used as a tool of harassment. The problem in Zimbabwe is that our legal system operates politically and we tend to misuse and abuse laws.

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“The intention of the law was not to be used to incarcerate political opponents.

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“It is a special provision that was to be used sparingly. It would be useful to use it on murderers and rapists, but in our case it is being used exclusively to harass political opponents.

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“In a delicate situation like Zimbabwe where there is no democracy, the law is easily abused. It is needed in a democratic country to deal with real criminals – not political opponents. The law must be set aside,” Gutu said.

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The director of the Zimbabwe Lawyers for Human Right, Irene Petras, recently told the media that the law was a violation of the constitution as it denied Zimbabweans the right to protection of the law.

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“Once Section 121 has been invoked, a judge’s hands are tied. It will be outside the court’s jurisdiction where the prosecution is taking over the role of the judiciary. There is no separation of powers there,” Petras said.

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Last year, local lawyer Alec Muchadehama challenged the constitutionality of the section but the matter is still pending.

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Muchadehama applied for the referral for the section to the Supreme Court in the case of the state versus Toendepi Shonhe.

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“We challenged the constitutionality of the section as it gives too much power to the Attorney-General.

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“It is not reasonably expected in a free democratic society which Zimbabwe is supposed to be,” he said.

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Since 2008, Section 121 has been used on nearly 100 MDC activists, officials and even ministers.

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