Magamba Cultural Activist Network Trust (Magamba Network), whose computers were recently seized by the police, has filed an urgent chamber application, seeking the return of its property.
BY CHARLES LAITON
The trust filed the application on Tuesday this week citing Home Affairs minister Obert Mpofu, Police Commissioner-General Augustine Chihuri and a Detective Chief Inspector Runganga as respondents.
According to the court papers, the computers were seized for generating content deemed as meant to subvert a constitutional government which led to the arrest of an American national Martha O’Donovan.
Through its lawyer, Tonderai Bhatasara, the trust said the law enforcement agents’ conduct was in violation of the organisation’s constitutional rights.
“This is an urgent application brought against the conduct and action of respondents and/or those under their employment or command. Applicant (Magamba Network) seeks a positive interdict for the return of the seized property and/or a negative interdict against respondents from demanding passwords to the computers and laptops in the interim and a setting aside of the warrant and a declaration that the conduct on respondents violated its constitutional rights,” the organisation’s projects manager Tongai Leslie Makawa said in his founding affidavit.
Makawa further said although the police raided his organisation on November 8 this year armed with a warrant of search, the purported warrant was defective as it was not issued in accordance with the law.
“I aver that the warrant of search is invalid as it was not issued in accordance with the law. More specifically the warrant was issued without complying with provisions of section 50 (1) (a) as read with section 49 of the Criminal Procedure and Evidence Act (Chapter 9:07),” Makawa said.
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“I aver that the person who issued the warrant did not apply his mind to the issue at hand and did not exercise his discretion as required by the law. The fact that it is couched in such wide and general terms justifies an inference that the issuing officer did not apply his mind to it as required by section 50 (1) (a) of the Criminal Procedure and Evidence Act.” He further said the search warrant was, therefore, invalid and should be set aside as it was too vague and general.
“It fails to meet the requirement of intelligibility. Consequently, a search warrant must clearly state what the officer entrusted with the execution thereof is empowered to do, namely, what person, premises, place, vehicle he may search and precisely what property, if found, is to be seized,” Makawa said, adding the process was not followed in the trust’s case.
Makawa also said when the officers seized the computers, they demanded passwords to the gadgets and threatened to arrest the organisation’s employees if they failed to comply with the request.
“I aver that such a demand and threat is unlawful. The demand is not based on any legal provision or court order. The demand also contravenes the right of applicant against self-incrimination,” Makawa said.
