HARARE – Marry Mubaiwa’s lawyer Beatrice Mtetwa has reacted angrily to a decision by a Harare Magistrates to allow Vice President Constantino Chiwenga to testify in secret without without the public and reporters present saying this was now like “animal farm where some animals are more equal than others”
Mubaiwa is charged with the attempted murder of the VP in a South African hospital in 2019 and on Thursday, Chiwenga himself was the National Prosecuting Authority (NPA)’s final witness.
“Section 3 of the constitution deals with the founding values and principles of the constitution. Equality of all human beings is guaranteed. It does not matter if one is the vice president, a stripper or the discarded ex-spouse,” a fuming Mtetwa argued.
“Those founding values should be seen to be applicable particularly when the powerful such as the complainant (Chiwenga) are involved.
“There can be no greater equality than subjecting the vice president to the same treatment as everyone else. It is because he is vice president that he must testify in public as has all the other witnesses.”
The decision by the court came after an application by prosecutor Lancelot Mutsokoti who asked magistrate Feresi Chakanyuka to hold the hearing in camera.
“The order we seek is for the exclusion in these proceedings of persons who are not officers of the court, parties to these proceedings and persons who are not support persons of the accused who she usually attends these proceedings with,” Mutsokoti began.
“We seek the exclusion of persons who are not the security and protocol team of the complainant.
“It is common cause that the next witness is one of the sitting vice presidents of Zimbabwe. This application is made to protect the dignity and security of that office. It is desirable that this witness be allowed to testify in camera.
“There exists security risks to this witness if he is compelled to testify in open court. However, if he is allowed to testify in camera, his security detail will have the advantage to secure him during his testimony and after. It’s in the interests of justice that he be allowed to testify in camera.
“We also seek to protect the private life of the witness who is a person concerned in these proceedings as the complainant.
“At the time of the commission of the offence, the witness was the husband of the accused. It is to be expected that during his evidence in chief and cross examination issues to do with the private life of the accused and complainant will be placed on record.
“Both the accused and complainant are entitled to the protection of their private lives. We make this application very well aware of the provisions of section 61 of the constitution on a fair and public trial.
“No law may limit the right to a fair trial. It is our argument that the right to a public trial may be limited in the manner envisaged…
“Any submission that suggests that the exclusion of any class of the public from this trial would be unfair would be incorrect. The trial will be fair. Her lawyer will remain. She will remain. Her support persons who usually help her will also remain.”
This did not go down well with Mtetwa who argued that her client was the being denied the right to a fair trial.
“The prosecution is inviting you to introduce into our criminal justice system an animal farm type of doctrine where some animals are more equal than others.
“This case has been about the privacy of the complainant and accused from the onset and the state allowed that privacy to be violated by having the matter be in open court,” Mtetwa told magistrate Chakanyuka.
“If my learned friend was sincere that it’s about the privacy of both parties, he would have had the matter in camera from the beginning. He knew the complainant was a party in this matter. So when he refers to a right to a fair hearing it includes even-handedness.
“There can be no truth in the pretence that this is to protect her (Mubaiwa) when everything in this case has been in open court.
“The section the state is relying on says ‘may’ not ‘shall’. The Magistrates Court Act section 5(2)(a) reads as follows: ‘Subject to this act… the proceedings in all cases shall be in the English language and shall be carried on in open court.’
“Against a section that says ‘may’, you are obliged to follow the peremptory provision of section 5… no law in Zimbabwe calls for the exclusion of the public based on the office of a person who is a witness.
“Section 319(a) is clear to that category of witness. The complainant cannot be called vulnerable in any way and does not need any protection.
“This application should have been at the onset of the matter. As a public figure, Chiwenga speaks at many places. Only last week he was acting president and was giving interviews. His security personnel will be in the same position as when he gives public interviews.
“That can’t be a basis for the proceedings being in camera and his security will be in the same state of alertness as when he speaks in public.
“The constitution provides for access to information and freedom of the media. The public has been regaled with this tale. The media that has been carrying the proceedings is equally entitled to this information.
“It would be a serious breach of section 62 of the constitution at this stage when the public is expecting to receive updates from this hearing.
“It would be a breach of a fundamental right to curtail the media’s right to freely practice their profession by denying them to follow the proceedings as they always have.
“It would be a violation of Mubaiwa’s fundamental rights to subject her to two processes where her privacy is subjected to the public, but when it comes to Chiwenga he has superior rights.
“If it is that way, then we should just throw away the constitution. The complainant is not a vulnerable witness who needs protection.
“There is no basis for the exclusion of the public as other witnesses have been heard in public. We ask the court not to introduce class justice into our criminal justice system. If section 3 gives equality to all, then Chiwenga is equal to you and me.”
The prosecution eventually got its wish and journalists and public members were asked to clear the courtroom to allow Chiwenga to testify in secret.
“The primary function of the right to a fair trial is to ensure that the accused gets a fair trial and the public sees that it is fair,” magistrate Chakanyuka ruled.
“Section 59 of the constitution provides that everyone is entitled to a fair and public trial. However, this right is not absolute. The court can use its powers when it sees it necessary.
“By virtue of the witness’ office, his privacy must be protected. No prejudice will be suffered if the witness testifies in camera. The application is granted.”
During a court lunch break Mubaiwa gave journalists outside an insight into what Chiwenga had said in camera.
“He said that the children have never asked about their mother. What bull*** is that? That is utter nonsense. He’s such a liar.”
Mubaiwa is facing charges of attempting to kill her estranged husband by disconnecting his life support system while he was undergoing treatment in a South African hospital in 2019.
She was also arrested over allegations of illegally transferring almost US$1 million overseas to purchase luxury cars and property in addition to the charges of attempted murder.
