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Daniel Nemukuyu Senior Court Reporter
Former Deputy Prime Minister Professor Arthur Mutambara will now be prosecuted for a 2008 contempt of court case after the Constitutional Court yesterday threw out his application for permanent stay of prosecution. Mutambara, in 2008, wrote an article that was published in The Standard newspaper where he blasted the judiciary and Justice Tendai Uchena over a decision that had been made.

Part of the “contemptuous” article titled “A shameful betrayal of national independence” reads:
“There is a criminal collusion between ZEC (Zimbabwe Electoral Commission) and Zanu-PF. To add insult to the injury, this unlikely marriage is dutifully consummated by a compliant and pliable judiciary typified and exemplified by Judge Tendai Uchena’s unreasonable and thoughtless decision not to order ZEC to release the Presidential results.”

The statement was viewed to be highly contemptuous and Mutambara was arrested in 2008.

The State had preferred an additional charge of criminal defamation against Mutambara but it fell away after the Constitutional Court last year ruled the charge to be unjustifiable in a democratic society in terms of the old Constitution.

Mutambara unsuccessfully tried to block his prosecution on contempt of court charges by challenging the constitutionality of Section 182 (1) of the Criminal Law (Codification and Reform) Act under which he was being charged.

In the judgment delivered yesterday, Justice Elizabeth Gwaunza ruled that Mutambara’s application lacked merit and that he must be prosecuted. The judge said although it was apparent that Mutambara was fighting a political war against ZEC and Zanu-PF, he got it wrong by making an unwarranted attack on the judiciary.

“Using strong language that, in my view, and as rightly submitted by the respondent, fell outside the limits of ‘reasonable courtesy and good faith’, he charged that the judiciary — accused by him of being compliant and pliable —would dutifully consummate the unlikely marriage between Zanu-PF and ZEC.

“Even after this, the applicant was not done! In an apparent effort to substantiate this speculative charges against the judiciary, he went on to cite a real judgment of the High Court, which he described as ‘thoughtless’ as an example of pliability and compliance that he had mentioned earlier in the statement.

“I do not doubt that it (statement) transcended the political arena and became a direct attack on the judiciary …”

Justice Gwaunza dismissed the application saying the statement constituted an offence and Mutambara should defend himself in a criminal court of law.

“I am satisfied, however, that the statement falls into the category of acts contemplated under Section 182(1) of the Code.
“To the extent that this section had not been repealed or otherwise struck off the statute books, it was clearly a law which, in terms of Section 20(2) (ii) of the former Constitution, had the objective of maintaining independence and authority of the courts.

“Words like pliable and compliant connote the very opposite of judicial independence and authority. The applicant bore the onus to prove his case and it was incumbent upon him to discharge it…” Justice Gwaunza said.
The judge also held that the arrest of Prof Mutambara did not violate his right to freedom of expression and association in any way.

The court also threw out Mutambara’s allegations of selective application of the law and discrimination.
He argued that President Mugabe had also attacked the judiciary in 2005 but was not charged. Justice Gwaunza said President Mugabe was immune to prosecution and protected under Section 30(1) of the old Constitution.

“The applicant by his own admission accepts that the ‘incumbent’ Presidential candidate concerned was, at the time he allegedly made the utterances, the President of the country.

“As correctly submitted for the respondent, the President was, as such, immune to prosecution,” she said.

The judge said Mutambara’s arrest was proper because there was reasonable suspicion that he had committed an offence. Justice Gwaunza said Mutambara had a duty to respect the law and that it was unreasonable for him raise a defence that someone had not been arrested for the same offence.