S v Musedza (CRB MS 819 of 2014) [2015] ZWHHC 557 (16 June 2015)

1 HH 557/15 CRB MS 819/14 STATE versus ELLIOT MUSEDZA HIGH COURT OF ZIMBABWE CHIGUMBA & TAGU JJ HARARE, 17 June 2015 Criminal Review CHIGUMBA J: The cannons of statutory interpretation are a tool which is placed at our disposal to assist us to decipher language that is used by the drafters of statutes. The drafter’s job is to give life to the intention of Parliament in enacting any piece of legislation. They bring acts of Parliament into life, by giving them substance, using such words as are best suited to convey the will of Parliament. The senior public prosecutor of Masvingo province was aggrieved when the presiding magistrate in the abovementioned matter declined to place the accused person on remand after making a finding that the accused was not a ‘public official for purposes of s 179(1) of the Criminal Law, (Codification & Reform) Act (the CODE), [chapter 9:23]. He caused the record of proceedings to be placed before us for review. The matter that requires determination is whether the accused person fell within the definition of public official in terms of the CODE, and if so, whether the presiding magistrate erred and misdirected herself when she declined to place him on remand on the basis that he was not a public official? Put differently, what is a public official for purposes of the CODE? On 5 May 2014, the accused was charged with contravening section 179(1)(b) of the CODE, it being alleged that at a bushy area between Exor and Clipsam, in Masvingo, he impersonated a member of the Central Intelligence Organization, (CIO) for his advantage, and in order to instill fear for purposes of taking photographs, of two members of the public. The members of the public were alleged to have been engaged in a discussion in the bushy area, HH 557/15 CRB MS 819/14 when the accused approached them and threatened them and made them do some acrobatics, and subsequently force marched them to a secluded place where he took photographs of them without their consent. The photographs were later published by the Mirror newspaper on the 5th of April 2014. On the day that accused was arraigned before the court, his legal practitioner Mr. Bhunu addressed the court and said that just because the accused is being alleged to have impersonated a member of the CIO did not mean that he had impersonated a public official. He submitted that according to the interpretation section for s 175 of the CODE, a public official is a person who works in an office that members of the public have access to, or who is a custodian of public records (see record page 1). His reasoning was that members of the CIO are not accessible to the public and they are not custodians of public documents therefore they are disqualified from being regarded as ‘public officials’. It was submitted further that the CIO was not set up in terms of an act of Parliament, and that consequently, the charge against the accused was incompetent. The public prosecutor, Mr. Nyamukondiwa, submitted that members of the CIO are public officials in the sense that they are agents of the state. He cited s 224(1) of the Constitution, which provides that an act of Parliament must set up and govern members of the intelligence services (record page 2). This is what the trial magistrate had to say: “…section 224 which was referred to by the state provides for establishment of the CIO. It follows then that the said section is not useful in this regard as it does not tell us of the operatives of the CIO. A reading of section 175 will show that members of the CIO are not public officials, they do not hold public offices and also they do not perform public duties. As much as their mandate is for state security and they are employees of the state their offices are not of a public character. This court takes judicial notice of the fact that agents of the CIO are not easily accessible. This can be said about their offices where they conduct their day to day business. How then can it be said that they are public officials since they are not accessible to the public and their records and findings are also not accessible to the public. This court believes the application by the defence counsel is well founded. It is therefore granted”. Section 179 of the CODE provides that: “179 Impersonating police officer, peace officer or public official (1) Any person who, for the purpose of obtaining any advantage, whether for himself or herself or for some other person, impersonates a police officer, peace officer or public official shall be HH 557/15 CRB MS 819/14 guilty of impersonating a police officer, peace officer or public official, as the case may be, and liable (a) .. (b)… (2) Where a person is accused of impersonating a police officer, peace officer or public official acting under an enactment which makes such impersonation a crime, such person shall be charged under that enactment and not under subsection (1). In section 175, the definition section; “public official” means (a) a person who (i) holds public office; or (ii) is appointed to perform a public duty; or (b) any employee or agent of the State or a corporate body of a public character, who is appointed as an inspector or in any other capacity to enforce the provisions of any enactment. (my underlining for emphasis). Sections 207 and 208 of the Constitution1, provides that; “207 Security services (1) The security services of Zimbabwe consist of— (a) the Defence Forces; (b) the Police Service; (c) the intelligence services; (d) the Prisons and Correctional Service; and (e) any other security service established by Act of Parliament. (2) The security services are subject to the authority of this Constitution, the President and Cabinet and are subject to parliamentary oversight. (3)…. 208 Conduct of members of security services (1) Members of the security services must act in accordance with this Constitution and the law. (2) Neither the security services nor any of their members may, in the exercise of their functions— (a)… (b) … (c) … (d) violate the fundamental rights or freedoms of any person. (3) … (4)… 209 National Security Council (1) There is a National Security Council consisting of the President as chairperson, the Vice- Presidents and such Ministers and members of the security services and other persons as may be determined in an Act of Parliament. (2) The functions of the National Security Council are— (a) to develop the national security policy for Zimbabwe; 1 Constitution of Zimbabwe Amendment (no 20) of 2013 HH 557/15 CRB MS 819/14 (b) to inform and advise the President on matters relating to national security; and (c) to exercise any other functions that may be prescribed in an Act of Parliament. (3) The commanders of the security services must provide the National Security Council with such reports on the security situation in Zimbabwe as the Council may reasonably require. 210 Independent complaints mechanism An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct”. Section 207 of the Constitution establishes the intelligence services, of which the Central Intelligence Organisation is one, as part of the security services enshrined in the highest law of the land. Section 207(2) states that members of the security services are subject to the authority of the Constitution, to the President, to Cabinet, and to Parliamentary oversight. Section 208 of the Constitution, which enshrines the conduct that is expected from members of the security services, provides that they shall act in accordance with the Constitution and with the law. It is not in dispute that the CODE is law. What is in issue is whether a member of the CIO can be classified as a public official, i.e. ‘an agent of the state’. Section 224 of the Constitution enshrines the establishment of intelligent services as follows: “224 Establishment of intelligence services (1) Any intelligence service of the State, other than an intelligence division of the Defence Forces or the Police Service, must be established in terms of a law or a Presidential or Cabinet directive or order. (2) Any intelligence service of the State must be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by this Constitution”. Members of the security services are automatic members of the National Security Council enshrined in s 209 of the Constitution. The mandate of this council is to develop the national security policy for Zimbabwe; to inform and advise the President on matters relating to national security; and to exercise any other functions that may be prescribed in an Act of Parliament. The commanders of the security services must provide the National Security Council with such reports on the security situation in Zimbabwe as the Council may reasonably require. Section 210 of the Constitution establishes an independent complaints commission whose mandate includes the receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct. The Constitution then goes on to provide for the establishment of the HH 557/15 CRB MS 819/14 defence forces (army and air force) in sections 211-218. Its composition, function, deployment procedures, political accountability, command, defence forces commission and its functions. In sections 219 to 223 of the Constitution similar provisions for the police are entrenched. The only provisions which relate to the establishment of intelligence services are enshrined in s 224-226, which speak of a law, or a Presidential or cabinet directive or order. Section 226 (2) is the closest provision for the functions of the intelligence service. It states that: “(2) The Director-General of Intelligence Services must exercise his or her command or control in accordance with any general written policy directives given by the Minister responsible for the national intelligence service acting under the authority of the President”. It is my view that just because the functions of the intelligence service are not set out for all and sundry to see clearly in the Constitution or any other act of Parliament does not mean that members of the intelligence services are not ‘public officials’. The definition of public official in s 175 includes any person who is an agent of the state. Can it be said that members of the intelligence services are not agents of the state when the national intelligence service is under the command or control of a Director-General of Intelligence services who must be appointed by the President, and whose mandate is to command and control the intelligence services; “…in accordance with any general written directives given by the minister responsible for the national intelligence services acting under the authority of the President”. Clearly the national intelligence service is run on the strength of Ministerial directives which are approved by the President. These will not be found published in an act of Parliament, or enshrined in the Constitution. National security issues are fluid, and by their nature secret. More often than not if the security of the country is threatened it would be bad intelligence to have such knowledge awash in the public domain. The reasons are obvious. One of them is that it would cause alarm and despondency in members of the public. The National Security Council which is enshrined by s 209 of the Constitution, provides Parliamentary oversight to the functions of the intelligence services, whose commanders are obliged to report to it, and to advise the President on matters relating to national security. Section 210 of the Constitution provides an independent complaints mechanism to any member of the public aggrieved by any alleged misconduct on the part of members of the security services, of which the intelligence services is a member. HH 557/15 CRB MS 819/14 In Zimbabwe Revenue Authority & Anor v Marowa Diamonds (Pvt) Ltd 2 at page 217 F-H the court said that: “…interpretation of statutes is a subject that is fraught with difficulty. It is a fact that various systems and theories of interpreting statutes have resulted, to some extent, in throwing the principles of statutory interpretation into confusing disarray, often compounded by the conflicting dicta of Judges; Principles of legal Interpretation,Statutes, Contracts & Wills by E. A. Kellaway at p4. The basic principle of construction generally accepted, up to a point, in South Africa is that the language used by the legislature should be read in its ordinary sense and where it is clear a court should nor depart from the natural and ordinary meaning of the words; Kellaway op cit at p16”. In the case of Chegutu Municipality v Manoora3, the court stated that there was no magic about interpretation. “Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Pearson (1857) 10 ER 1216 @ 1234 unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further”. See also Madoda v Tanganda Tea Co Private Ltd4, Meman & Anor v Controller of Custom & Excise5 The normal and ordinary meaning of the words ‘public official’ were defined in s 175 of the CODE to include an agent of the state. Members of the Intelligence services are agents of the state, whose mandate is enshrined in the Constitution, and who are governed by Ministerial directives which are approved by the President, and which are subject to Parliamentary oversight via the authority of the National Security Council. The magistrate erred, and misdirected herself by making a finding that a public official must be accessible to members of the public and or be a custodian of public documents. This cannot be in any way construed as the normal and ordinary meaning of the word ‘public official’ as it is defined in s 175 of the CODE. The ruling by the magistrate in which she found the charge against the accused person to be incompetent for 2 2009 (2) ZLR (S) 213 (S) 3 1996 (1) ZLR 262 (S) @ 264 D-E 4 1991 (1) ZLR 374 (S) @ 377 A-D 5 1987 (1) ZLR 170 (S) @ 172 F-G HH 557/15 CRB MS 819/14 the reason that he did not qualify to be defined as a ‘public official is hereby set aside. The matter is remitted back for the placement of the accused on remand to answer the charge preferred against him. TAGU J: Agrees:…………………………………………