State prosecutors infiltrated, incompetent, claims the Herald editor

State prosecutors have allegedly been infiltrated  by unknown elements resulting in displaying  'shocking incompetence', state-controlled Herald has claimed.

Herald Editor Caesar Zwayi said in  an  article today that the amateurish show from the prosecution led to  High Court judge Justice Priscilla Chigumba declaring Statutory Instrument 101A of 2016 that banned demonstrations in Harare's CBD invalid and ultra vires the Public Order and Security Act and hence the Constitution.

"Repeated bungling by the Government's prosecuting arm has raised the spectre of serious infiltration of the prosecution,, " he wrote.

He added "This means the ban on demonstrations will be allowed to operate for the next seven days, if the seven days lapse without the State acting on its defective case, the provisional order will be confirmed and the ban voided.

Zimbabwe's High Court struck down on Wednesday a two-week ban on public protests issued by the police, a ruling hailed as a brave stand by the courts in the face of threats to the judiciary from President Robert Mugabe.

Quoting an unnamed lawyer, Zwayi's article suggested that state prosecutor  Happy Magadure is incompetent.

"The Judge noticed that in so far as the Statutory Instrument is concerned there was only the affidavit of the Police Commissioner General, and not the first respondent.

"The judge then told the State that the papers were defective and directed the State counsel to put his house in order by bringing an affidavit done by the Officer Commanding Harare District because he was responsible for issuing the Statutory Instrument. The Commissioner General's affidavit would be a supporting affidavit.

"It was a directive from the Judge that the affidavit should be included. So when they reconvened today (yesterday), State Counsel did not bring the required affidavit from the Officer Commanding Harare, which meant that the State papers were defective. They had not been corrected as directed by the judge. And the legal implication of that is the State papers became inconsistent with Posa and thus unconstitutional to the extent of that inconsistency.

"You do not just publish the ban and say that is the order. You must first publish the draft order to all stakeholders so that you hear their inputs and concerns for a certain period. After that, if you still want to publish the order you then gazette it. Now with this ban, all this was not done.

"The reason why all this was not done is that there is a provision for publishing if it's not expedient to publish and consult stakeholders you can still publish without consultation but then you must give evidence why it was not expedient, and why you are proceeding like that. You must justify it by way of evidence and in an application, it normally means an affidavit by the person ordering the action and in this case the Officer Commanding Harare.

"What the First respondent's affidavit should have done is provide justification why it was not expedient for him to follow all those procedures outlined in Section 27 of Posa. If it was because of the urgency of the matter, he would have explained the urgency, and offered the situational report and all that. That is the affidavit that would have justified the ban.''

"There is no explanation yaapa. He was asked why he did not bring the affidavit and said I have no submissions to make. He didn't even say the Officer Commander Harare is out of town, he will be found tomorrow. He didn't even say I thought the Comm Gen's affidavit was sufficient, he couldn't have said so because on Monday he had been told that the Comm Gen's affidavit was insufficient, the Officer Commanding Harare's affidavit was needed,'' the lawyer said.