Zimbabwe police ordered to release seized NGO gadgets

High Court judge Justice Neville Wamambo has ruled that the police must release all electronic gadgets seized from employees of the Zimbabwe Election Support Network (ZESN) and the Election Resource Centre (ERC) following their arrest on the eve of the August 2023 harmonised elections.

The applicants, led by Natasha Nyamatsanga and 17 other individuals, had approached the court seeking the return of the gadgets, which were used to collect election results during the polls. They cited Police Commissioner-General Godwin Matanga, Home Affairs and Cultural Heritage Minister Kazembe Kazembe, and Prosecutor-General Loice Matanda-Moyo as respondents in the matter.

According to court documents, the applicants were arrested on August 23, 2023, on charges of violating the Electoral Act, accused of gathering election results with the intent to announce them as official results. During their arrest, several items, including electronic gadgets, were confiscated by the police.

After their arrest, the applicants sought the release of their confiscated gadgets. However, when they approached the CID Law and Order unit at the Harare Central Police Station on June 7 this year, they were informed that the items would not be returned due to ongoing investigations. The applicants subsequently filed for the return of the gadgets, requesting that the police release them and pay the costs of the lawsuit.

The respondents, including Matanga, Kazembe, and Matanda-Moyo, opposed the application. They raised preliminary points arguing that the matter was not urgent, stating that the applicants should have filed a separate application for the disposal of the seized exhibits. They also contended that investigations were still ongoing and that the police would issue summons once the investigations were completed.

Matanda-Moyo further argued that the applicants had not acted promptly after the gadgets were seized, and the state was in the process of extracting information from the devices with the help of experts.

However, Justice Wamambo disagreed with the respondents' arguments. The judge ruled that the urgency of the matter arose after the charges against the applicants were withdrawn on May 30, 2024. He noted that the applicants had made several efforts to retrieve the seized gadgets following the withdrawal of the charges, including corresponding with the police and approaching the clerk of the court. The judge dismissed the preliminary point regarding the lack of urgency, stating that the applicants had acted when it was necessary to do so.

Justice Wamambo also criticized the respondents for failing to provide any legal authority that would justify the indefinite retention of the gadgets after the charges were withdrawn. He pointed out that allowing exhibits to be kept without clear justification would undermine the principle that once charges are dropped, confiscated items should be returned.

"The design to withdraw charges before plea must have been made upon proper reflection. To allow otherwise would mean charges can be withdrawn and exhibits kept by the respondents indefinitely," Wamambo stated.

In his ruling, the judge found that the application had merit and ordered the respondents to release the gadgets to the applicants. Additionally, the respondents were instructed to pay the costs of the lawsuit.

This decision comes as a significant victory for ZESN, ERC, and other civil society organizations, who have long advocated for transparency in the electoral process. The case also raises concerns about the use of state power in the collection of election results and the handling of such information.