Biti challenges conviction and sentence over contravening Electoral Act

HUMAN rights lawyer and MDC-Alliance Vice-Chairperson Hon. Tendai Biti
has filed an appeal in the High Court challenging his conviction and
sentence for contravening some provisions of the Electoral Act.

Hon. Biti filed the appeal against both conviction and sentence

after Harare Magistrate Gloria Takundwa on Monday 18 February 2019 convicted
him for unofficial or false declaration of election results as
defined in section 66A(1)(a) and section 66A(1)(b) of the Electoral
Act after ruling that the State had managed to prove its case against
the Harare East constituency legislator beyond any reasonable doubt
and sentenced him to pay a fine of $200 in default of payment seven
days imprisonment. In addition, six months imprisonment was wholly
suspended for five years on condition that Hon. Biti does not during
that period commit any offence involving purportedly announcing
results or declaring a winner of an election and for which upon
conviction he is sentenced to imprisonment without the option of a
fine.

But Hon. Biti through his lawyers Beatrice Mtetwa and Alec Muchadehama
of Zimbabwe Lawyers for Human Rights on Friday 22 February 2019
appealed against Magistrate Takundwa’s judgment and argued that the
judicial officer had grossly erred and misdirected herself in
convicting the human rights lawyer and imposing such a sentence.

Hon. Biti’s lawyers argued that Magistrate Takundwa misdirected
herself in failing to properly consider and pronounce herself on the
pre-trial violations of the human rights lawyer’s fundamental rights
and on the legality or otherwise of Hon. Biti’s “arrest” in Chirundu.

The lawyers argued that Magistrate Takundwa grossly erred and
misdirected herself by holding that the Harare Magistrates Court had
jurisdiction to preside over Hon. Biti’s trial when the unquestioned
evidence was that he was unlawfully removed from Zambia in violation
of the neighbouring country’s High Court order and of domestic,
regional, continental and international law relating to political
asylum seekers.

Mtetwa and Muchadehama contented that the Magistrates Court erred and
misdirected itself when it failed to consider and take into account
that results posted at polling stations and constituencies by the
Zimbabwe Electoral Commission (ZEC) are in fact official results on
which the public is entitled to report on.

Hon. Biti’s lawyers submitted that the charges were superfluous once
it was accepted that the election results are in fact declared and
announced, once the constituency return is posted outside the polling
station, or a constituency ward centre and a provincial command
centre.

The lawyers stated that Magistrate Takundwa erred and misdirected
herself in convicting Hon. Biti when there was no intention proven by
the State of him having committed the offences given the opposition
legislator’s evidence that he held a media briefing to compel ZEC to
release the election results early and in any event what he announced
were not official results.

Hon. Biti also argued that section 66A(1)(a) and section 66A(1)(b) of
the Electoral Act are unconstitutional in that the two provisions
unjustifiably infringe his right to freedom of expression as set out
in section 61 of the Constitution, his right to information provided
in section 62 of the Constitution and his political rights guaranteed
in section 67 of the Constitution.

Mtetwa and Muchadehama wants the court to set aside the Hon. Biti’s
conviction so that he is not found guilty and acquitted on both
charges of contravening section 66A(1)(a) and section 66A(1)(b) of the
Electoral Act.