HARARE – Senior MDC Alliance leader Tendai Biti on Friday challenged his arrest, telling a magistrate that he was “improperly before the court” on charges of inciting public violence and making an unlawful declaration of presidential election results.
Biti, handed over to Zimbabwean authorities by Zambia after his asylum application was rejected by ministers, said he was unlawfully returned home in violation of international immigration of law.
His lawyer Beatrice Mtetwa told magistrate Francis Mapfumo: “It is our submission that Mr Biti is not properly before you by virtue of the infractions of the local domestic law, Zambia’s domestic law and international domestic law.
“Zimbabwe did not comply with protocols of SADC law on extradition, neither did it comply with Zimbabwean law under the criminal matters, which regulates the steps that the Prosecutor General has to take to bring a person wanted for criminal purposes in Zimbabwe back into the country.”
Biti, who led evidence in this regard, and his lawyers will file written head of arguments of why they claim he is illegally before the court.
Biti told the court he had survived an assassination attempt and his family had endured harassment by state security agents which made him believe his life was in danger.
“The 2018 election was very strange and novel in many ways. So, at the beginning we were allowed to campaign freely. No-one bothered at first but when thousands attended our rallies there was panic from the ruling party … and there was violence against us.
“What happened was we went to Caledonia farm, a new settlement. In 2013. we couldn’t campaign there as we were beaten but this time they allowed us in. When we got there, there were many Zanu PF people already there, raising banners and singing. We were attacked in the presence of police officers. Three of our members were injured,” he said.
Biti said when they went to report the case at Mabvuku police station that found the police station shut.
“That’s when we felt that this election was going to be penetrated that we had no protection,” he said.
According Biti when the party held its penultimate rally in Caledonia farm, for security reasons he sneaked out and rally continued without many not being aware he was not there.
He said he was using Ford Ranger and when he left the rally in Caledonia there was a car hiddden in the bush and “people must have been coordinating”.
The mystery vehicle, with very bright lights, was headed for the driver’s door, but it only smashed into the right rear wheel. The car got away but not before the number plate fell off.
“We felt it was an assassination attempt,” he said.
He said they reported the incident at Mabvuku police but up to now the police have not arrested anyone or found the owner of the car.
The election took place on Monday, July 30, but by that time the MDC Alliance had no trust in ZEC and their key concern was when were they going to announce the presidential election result.
“Our fear was a repeat of 2008 when results were announced six weeks later. Elections results should be announced soon after they are out,” he said.
“It was just a matter of adding up the V11 forms. Our fear was that they were going to manipulate the information, the result, because they wouldn’t announce after they finished vote counting.
“On August 1, we were in consultation with our lawyers and in the afternoon at around 4PM, MDC Alliance leader Advocate Nelson Chamisa got two calls from Home Affairs Minister Obert Mpofu saying he should call off people who demonstrating in town.
“He said he was not responsible and those who were protesting were not linked to the MDC. He told him the MDC had a legal way of doing things and he was not going to control a March he didn’t sanction.
“Mpofu called again saying the people were chanting Chamisa’s name.
“Shortly after, we received a phone call saying that people had been shot in town… So to answer you directly, I was never called to report at the police by anyone.”
After learning in media that he was wanted by police, Biti said he asked his lawyer, Alec Muchadehama, to engage the police at Harare Central Police Station.
“I trusted the justice system, we agreed that I would hand myself over to the police. It was on August 2, on a Thursday. My lawyer went to the Law and Order section and informed them he was representing me and that he was going to hand me over to the police.”
According to Biti, the lawyer was told that they were not aware of the fact that he was a wanted man.
“Right up to Monday, August 6, no-one called. We believed someone other than the police was controlling things and this case,” he said.
He said his other lawyer, Harrison Nkomo, went to the CID on that Monday and told them Biti was going to surrender himself “to genuine police not junta police.”
“We were contemplating they would accompany me to Law and Order in their hundreds (the lawyers) but there was an indication from the lawyers who were in the advance team that Law and Order was not in charge but someone else, ” he said.
He said there was consensus that he would not surrender himself to anyone other than police. He said he requested a guarantee from Commissioner General Godwin Matanga that he would not surrender him to any other authority.
Biti said he was convinced it was the military “behind all this”.
The lawyers went on to produce the letter that was written to Matanga seeking assurance that he will be safe in police hands. He said Matanga did not respond or acknowledge that he received the letter.
“It was clear there was no guarantee,” he said. “A series of illegal things kept on happening. Threatening my relatives, my family.
“I have been a human rights lawyer, activist and politician since 1999, and had my house bombed but nothing beats the nature of threats I had for the last seven days. I never felt so threatened. What baffled us was that soldiers had opened fire on civilians… so by just watching the video it was frightening. To see soldiers behaving like that, while enjoying it.
“We also had reports of some members who has their private organs split by bayonets at the hands of soldiers. It was frightening.
“There was a massive onslaught on our polling agents. In fact they visited every home of our agents who they suspected had V11 forms.”
Biti said in Buhera, one of their agents was raped in the presence of her husband by suspected state agents.
At this point, the prosecution complained that he was narrating incidents relating to other people not himself.
But his lawyer Beatrice Mtetwa said Biti’s tale was appropriate considering that Biti is a political leader with so many individuals that fall under him.
She said there was no way various incidents which occurred in the aftermath of the elections could be separated.
“You can therefore not stop him from narrating what happened to people who had V11 forms. Fair hearing procedures allow him to state his case without hindrance, ” said Mtetwa, adding that the narration is the foundation to allegations he is facing.
Mtetwa said the information will be evidence to show how his life was in danger.
“What we want to bring out is did this affect his state of mind?”
Biti continued: “We were receiving threats particularly on those with V11 forms; we received threats of mass arrests; reports of attacks on our leaders and critical members like Morgan Komichi, who was the presidential chief election agent. He was put under pressure.”
He also cited youth leader Happymore Chidziva as another victim. His door was kicked in while his family slept by suspected soldiers, but he was gone.
He said the police were claiming ignorance of all this.
“On August 2, I drove out of my hideout to go and meet the lawyers, so I go to surrender myself. I received a phone call from Muchadehama who told me I was no longer wanted,” he said.
“Journalists were waiting at Harare Central Police Station. We then held a press briefing at my law firm. I then saw a convoy of about 15 cars, twin cabs most of them, that did not have number plates. Those which had them were South African number plates.
“There was a haulage truck in front of the fleet and they positioned themselves outside our law firm. One of our lawyers told the truck driver to drive away but was ignored. Then we suspected they were up to something. They were not police officers and did not produce their particular s to identify themselves.”
He said lawyer Nyasha Munetsi threw himself in front of one of the vehicles to block it while he escaped with his driver.
“We started driving around. I realised this was not normal,” he said.
That evening, he said he got a call from the Peace and Reconciliation Commission and was told the country was going to burn as results would be announced.
“They asked to meet me and Chamisa. I was told by the commissioners that things were going to be hard for us. They said we should go on national television to announce we lost. We refused to validate lies,” he said.
“My mother is around 70 years old. She stays with my brother’s kids, two of them and a helper. She is not involved in politics.
“My mother is an old woman, she is diabetic and has to eat frequently. She has been going to physiotherapy. On Friday, August 3, she came back and found the house surrounded by vehicles. She called me. She saw people were jumping in and out. But the press then came and started filming the whole thing.
“This happened until 12 mid-day and my nephew confronted them to identify themselves, but they didn’t and instead threatened to kill him.”
He said the following day, the same unmarked cars returned and some of the men jumped the wall and went into the house and took everyone’s phones.
He said his mother was abducted until 11PM. They demanded to know where Biti was and also his wife’s whereabouts. She was ordered to sing hymns.
“I felt guilty and I took a conscious decision to fight this terrorism, but party members were against it. I have a friend, one of my best friends, who has a house in Highlands. On Sunday, August 4, the police went and surrounded the house. My friend’s mom is very old. She lives at that house. She was traumatised. The girl who stayed there tried to run away but was tracked and found at a place in Borrowdale. We had to get a lawyer to accompany them home.
He said when they left, a marked police car went to the house and left a warrant for me and my friend. He said they were accused of having firearms and grenades among other weapons at the house.
How he ended in Chirundu and Zambia
“There was a clear siege by the army. The clear evidence that the police were not involved and not in control. My brother and his children were shot at. One of the children is six-years-old and the other 19.
“They took my brother and promised to release him if only he told them where I was.
“The police said they had nothing to do with all this. They could not help me.
“I contacted some African diplomats who advised me to seek asylum. I chose Zambia.”
He left Harare with a lawyer, Advocate Nqobizitha Mlilo, driver Clever Rambanepasi and his brother-in-law, Clive Chitekwe.
“Some people wanted to help me skip the border, but I wanted to go lawfully. I didn’t want to offend the country I was going to,” he said.
Biti said his lawyer sought asylum immediately when they arrived at the one-stop Chirundu border with Zambia.
“In order to avoid attracting attention, I was lying on my back,” he said.
He said the lawyer suspected they had been spotted because traffic was building up. He was then taken by suspected Zimbabwean state agents who refused to identify themselves.
He was then told by an official that they were taking him back to Harare. Biti said he refused, indicating that only Zambian police or authorities could take him or arrest him since he was in Zambian territory.
He said these agents, numbering about 15, then wrestled him to their car.
“A tag of war happen. Some Zambian women protested against the incident and started pulling me away from the Zimbabweans, and the crowd kept swelling,” he said.
He said there were confrontations over territorial issues between Zambians and Zimbabweans, with Zambians refusing to release him into the Zimbabweans’ custody.
He said a Zimbabwean agent told him that he was very lucky to have gone beyond the Zambezi River Bridge. Biti said one agent told him that they were being pressured to take him back.
He then sought asylum in terms of SADC protocol. But the Zambians were afraid because many violent Zimbabwean state agents kept arriving.
He said Zambians smuggled away from the border post. The Zimbabwean agents thought he had escaped to Lusaka and they flooded Ludaki and Karina roads, and some were stationed around a police station.
“Chirundu police needed reinforcement in their own country because they were outnumbered by Zimbabweans who wanted to take me,” he said.
The Minister of Home Affairs for Zambia had promised safe passage for him.
Biti said then some Zambian officers then told him that they were now fighting their bosses. Zambian police protested saying if he was not to be granted asylum he was to be accorded safe passage.
Three sets of lawyers then filed urgent court applications in support of Biti and an order was granted for him to stay in Zambia.
He said there was a challenge over phones since Zimbabwean authority intercepted his phone calls. He said he was still using Zimbabwean SIM cards.
Zambian police wanted him to go to Lusaka but there was no agreement. He said Zambian police offered a toilet to accommodate them since it was dangerous to stay in a cell.
He thought the Zambian police wanted to help him as much as possible.
The following morning, the court order in his favour was served to both authorities.
“In terms of the order, I was to remain in the hands of the Zambian immigration authority. Head of immigration at Chirundu, Mrs Chita, was there to help,” he said.
The order was also nailed outside the cells so that everyone could see.
He said many including the Dutch and American embassies, had promised to escort him to Lusaka but his lawyers were nowhere to be found.
“They brought three soldiers who had balaclavas, I don’t know if they were Zimbabweans or Zambians, they had guns and were in uniform.
“So, we were ordered outside. We couldn’t have resisted because there were guns now. We learnt afterwards that the lawyers had been chased away and also immigration officers who helped us on the first day.”
The police was brushed away, they were just like little boys. I was put in a car and it was a huge convoy. They did not identify themselves and did not tell me where we were headed,” he said.
Biti said they pretended they were going to Lusaka but then drove to Zimbabwe trying to avoid the border.
“I didn’t voluntarily forgo the decision to appear before Zambian High Court yesterday (Thursday).
“I was unlawfully removed from Zambian territory by Zimbabwean agents. We were waiting for the right to be heard. We also knew SADC protocol says one cannot be extradited for political reasons,” he said.
“I kept on waving the court order to the men who came to pick me.”
He said he even produced the order at Chirundu police where he was formally arrested but was ignored.
It was false that he was deported, he said. Instead, he said he was abducted from Zambia by Zimbabwean state agents.
It was also a lie that he was arrested while trying to cross into Zambia as alleged by prosecutors. He said Zambians believed his life was under threat but were “shadowed by the Zimbabwean darkness.”
“There is due process to extradite an accused person but this was not followed. It is unlawful for an asylum seeker to be deported back to his or her country. I’m aware of International Refugee law.
“At Chirundu police station, on the Zimbabwean side, there were dozens of police officers, there were a lot of unmarked vehicles and officers had lots of guns.
“I spoke at the top of my voice and people who brought us were uncomfortable with the noise I made.
“A warned and cautioned statement was then recorded.”
He said at that time he was supposed to be before Zambian High Court judge, Justice Siyalonga, as per the court order.
“It very sad and regrettable that the government of Zambia surrendered me to the Zimbabweans when my life was in danger.
“A nullity is a nullity. My deportation back to Zimbabwe is a nullity and one cannot justify a nullity.
“I intend with my lawyers to take this to every court or international law so that this won’t happen to someone else.
“I went to my law firm (on Thursday after he was released on $5,000 bail) and we were followed by those unmarked vehicle including the one that hit my driver. I don’t think it’s necessary. I’m now before the courts.”
During cross examination with state prosecutor, Justin Uladi, Biti maintained that what he did with regards to election results was justified.
“It’s a simple mathematical exercise, very interesting if done properly. A result has already been announced at a polling station. That information is already public because when one leaves, they already know that Chamisa has won. So I did not commit any offence with regards to the first count, of contravening the Electoral Act,” he said.
“For any individual to announce that their leader has won is not a crime and I did that but not at the address given,” he said.
He said he does not agree with the position that only ZEC has a mandate to announce results.
“V11 is a declaration by ZEC given to the public and I only read it out,” he said.
“So, the publication has already happened. I only echoed a declaration which had already been made by ZEC by publishing V11 forms outside polling stations.
“Section 66 of the Constitution is superfluous in that the declaration would already have been made by ZEC.”
Uladi said evidence will be show that Biti was arrested on the Zimbabwean side of Chirundu border post and that Biti was a fugitive.
The prosecutor said evidence will be produced that Biti was issued with a warrant of arrest when he was nabbed.
But Biti said he only got to know about a warrant of arrest issued against him in court.
Biti said his application for asylum was yet to determined. He said he was never notified that he was under arrest although he was handcuffed.
There was no legal way in which he was brought back to Zimbabwe, he said.
Biti said according to Zambian law, if he was not to get asylum, the country should have allowed him passage into another country.
“I was never served with any deportation order. There was no notice to deport,” he maintained.
Uladi said there was no reason for Biti to seek asylum because his charges were purely criminal.
“I’m not facing criminal charges. I’m facing political charges arising from the fact that we took a different position from those in power in our country. People who now emerge to be tyrannical powers,” he said.
“Neither myself nor the political alliance I belong to believe in violence and we have maintained that we will change Zimbabwe in peace. We genuinely believed we won the election. Even up to now I maintain the position. Those who believe they won do not throw stones.”
He was nowhere near the scenes of violence at Zanu PF’s provincial headquarters described in court papers, he said.
“For starters, I don’t drive myself. I have never been near the offices mentioned. I don’t know Jim Kunaka (co-accused) and I don’t have a green car. The charges are nonsensical. As a leader of MDC Alliance, we carry so much responsibility together with Nelson Chamisa.
“The state can’t produce the list of witnesses I’m not supposed to interfere with. It’s because they want to cook up evidence and witnesses. I will not start now at the age of 52 (public violence) when I couldn’t do it when I was 20.”
He had no problem defending himself in court or facing the police, but he had judged that there was a threat to his life.
“In 2008, I was in South Africa when it was announced that I was wanted for treason and I flew back. Treason is a crime for which one can be hanged,” he said.
The hearing continues on August 15.
