MDC-Alliance Vice-Chairperson Tendai Biti has filed an appeal in the High Court challenging his conviction and sentence for contravening some provisions of the Electoral Act.
Biti filed the appeal against both conviction and sentence after Harare Magistrate Gloria Takundwa on Monday 18 February 2019 convicted Biti 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 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 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.
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 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 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.
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 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.
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 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.
