Biti case brings Zimbabwe judiciary under spotlight

The on-going trial of MDC deputy national chairperson Tendai Biti has exposed the politicised and cavalier attitude of a prosecution service that has long been captured by elements that protect and promote the interests of the ruling party, analysts have said.

The prosecution service was brought under the spotlight over the past two weeks after Biti's lawyer, Beatrice Mtetwa, claimed chief prosecutor Michael Reza sent a damning message, denigrating Harare magistrate Gloria Takundwa, who is presiding over the case.

Takundwa's crime was that of okaying livestreaming or bringing courtroom proceedings under public glare by agreeing to broadcast the court functioning, paving the way for people to watch the courtroom drama live as it unfolds.

Her brave and independent decision was hailed as a giant step to inject transparency and accountability in judicial functioning, with the move seen as manifestly in the public interest to help bring the work of the judiciary to the lives of citizens.

Mtetwa alleged Reza bizarrely sent the demeaning message to Advocate Thabani Mpofu in the mistaken belief that he was communicating with another Thabani Vusa Mpofu, who leads the Special Prosecuting Unit in the Office of the President.

Biti's lawyer brought the matter to light when she pressed for contempt of court charges against Reza for denigrating Takundwa - who, until then, was not aware that she had been savaged for her decision granting the opposition figure his request for live-streaming of his case.

Mtetwa read out the message in court.

"Cde Mpofu. It's Reza, how are you? Another strange ruling by the magistrate trying Tendai Biti. They applied for live-streaming of the case, with cameras and journalists in court and proceedings beamed all over the world. She has just agreed to that without authority of her boss the Chief Justice (Luke Malaba). She is either very brave or very stupid or both, kkkkkk," read the controversial message by Reza.

The way the chief prosecutor referred to the head of the Special Prosecuting Unit in the President's Office as "comrade" has also stirred controversy.

"Comrade" in Zimbabwe is a term used for persons affiliated with the ruling Zanu-PF.

Asked if indeed he sent the offending message, Reza declined to comment and also did not respond to messages sent to his mobile.

Mpofu, who leads the Special Prosecuting Unit in the President's Office, told the Daily News on Sunday he was yet to receive the chief prosecutor's message, which critics have said was not only contemptuous but also compromised the independence of the judiciary as it suggests, rather chillingly, that judges and magistrates make rulings only with the authority of Chief Justice Luke Malaba.

Asked if he received the message, Mpofu said: "No I didn't my brother. I understand Reza and Advocate are known to each other."

Advocate Mpofu, the calm and combative lawyer who represented opposition leader Nelson Chamisa in his presidential election petition, confirmed receiving the message from Reza, which suggested judges and magistrates routinely confer with the Chief Justice before making rulings. He confirmed passing the message to Mtetwa.

Piers Pigou, senior consultant at the International Crisis Group told the Daily News on Sunday: "The Reza story reflects the politicised and cavalier attitude of a prosecution service that has long been captured by elements that protect and promote the interests of the ruling party or particular component interests. He should be sanctioned."

The case took a new twist after a panicking Takundwa approached the High Court suggesting that she might have made a mistake by granting Biti the permission to live- stream the court proceedings - a decision which stirred controversy as it coincided with the eye-brow raising criticism that Reza had directed at her, describing her as either "very brave or very stupid or both".

High Court judge Joseph Musakwa told Takundwa to live with her decision, as he declined to review her livestreaming decision.

Legal expert David Hofisi, however, said the magistrates' court does not regulate its own process.

"Only the Con-Court, Supreme Court and High Court do so. Yes, the Con-Court has the most independence in constitutional matters and the Supreme Court in all other matters since they are not subject to any other court.Con-Court is not a creature of statute - neither is Supreme Court and High Court - it is a constitutional body. A magistrate seeking guidance from a higher court is not contrary to independence of the judiciary - that's the entire rationale for our appeals process," Hofisi said.

"Higher courts have a direct influence over lower courts. The problem is not the substantial issue of whether guidance was sought but the procedural detail of when and how. Independence of the judiciary is understood in the context of hierarchy of courts.

"In an abstract sense, the Chief Justice is in charge of all courts, which is why he has the power to set aside all decisions which are properly placed before him. That process of decision making within the hierarchy is what is protected by institutional independence."

Arnold Tsunga, the Africa director at the International Commission of Jurists, said he thinks Takundwa felt intimidated but she did nothing wrong.

"It's a matter of public interest and live streaming improves the perception of fairness of the trial process," Tsunga said.

"The communication between Reza and Mpofu is very unfortunate as a significant number of people will agree with Beatrice rightly or wrongly that it was meant for Thabani Mpofu who is a special prosecutor in the President's Office.It may partly explain why the magistrate felt intimidated. It also needlessly implicates the President's Office in a case where a legitimate political opponent is facing justice or injustice depending on how one sees this. Justice Musakwa is spot on," Tsunga said.