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enemies of Zimbabwe or organisations hostile to the country.
“Any person who, for any purpose prejudicial to the safety or interests of Zimbabwe, obtains, collects, records, publishes or communicates to any person any secret official code, password or any model article, document or other information calculated to be useful to an enemy, shall be guilty of an offence and liable for imprisonment for a period not exceeding 25 years.”
HD Networks director, Oliver Chiku, Africom Holdings acting chief executive, Simba Mangwende, and a non-executive director Farai Rwodzi, were last week arrested on allegations of illegally installing satellite equipment and connecting it to the Africom network with the intention of leaking security information to foreign countries.
The three, who remained in custody, yesterday filed a bail application at the Harare Magistrates’ Courts and the hearing continues today with a State witness testifying.
They allegedly connived with a Canadian firm called Juch Tech to import equipment for the transmission of the information from Government ministries to the countries in question in breach of Section 3 (c) (ii) of OSA.
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The three are also being charged for breaching section 33 (1) of the Post and Telecommunication Act, which criminalises illegal possession or operation of a radio station without the authority of the regulating authority.
The courtroom was at one point cleared to allow the State to explain what the outstanding witness was going to say.
In the same proceedings, Harare provincial magistrate Mr Munamato Mutevedzi threw out a challenge by the defence against the prosecuting authority issued by the Attorney-General.
The defence argued that the authority was signed by one of Mr Johannes Tomana’s depu-ties when the task was not supposed to be delegated at law.
The court ruled that authority to prosecute was not a strict prerequisite and that the AG was allowed to delegate the function.
Lawyers representing the three argued that OSA, under which their clients are being charged, required the President to first declare the said recipient of the information an enemy of Zimbabwe.
Without such a declaration, then it means the said countries should not be labelled enemies and that the charge should not stick.
Advocate Lewis Uriri, Mr Nikita Madya, Mr Tendai Ndoro and Mr Innocent Musimbe, separately submitted during the bail application that there was no statutory instrument that proclaimed or declared the countries or the Canadian firm enemies of Zimbabwe.
Adv Uriri said the law was clear and that in the absence of proclamation or declaration by the President the charge preferred could not stick.
“There is no presidential declaration that the three countries mentioned as recipients of the information are enemies of Zimbabwe.
“No statutory instrument was issued to that effect,” said Advocate Uriri.
Mr Ndoro also submitted that the absence of declaration of hostility was weakening the State case.
“We need a declaration of hostility. The said information was passed on to Afghanistan, Canada, and US but there is no proclamation that the countries are enemies of Zimbabwe.
“While Zimbabwe has disagreed with any of these countries on certain issues, there is no declaration of hostility against the countries.
“At best the State would have listed the countries as those that have once disagreed with Zimbabwe at some point. Facts also do not disclose why and how Juch Tech is a hostile organisation,” he said.
Mr Madya raised the same argument saying the State’s case was very weak and hopeless.
“How is the Canadian company Juch Tech hostile to Zimbabwe? There is not a single reference in the form 242 (request for remand form) that Juch Tech was declared by the President as a hostile organisation.
“No Statutory Instrument was issued to that effect, hence charges against the three are hopeless and they cannot form the basis for denying the accused persons bail,” he said.
Detective chief superintendent, Luckson Mukazhi, who testified for the State refused to comment on the issue of presidential proclamation.
Asked on whether the three countries were enemies of Zimbabwe, chief superintendent Mukazhi said, “I cannot comment.”
When magistrate Mr Munamato Mutevedzi further questioned him, he referred the question to an appropriate person who could comment on such issues.
“There is need for an appropriate person to answer that question,” he said.
Harare area public prosecutor, Mr Jonathan Murombedzi, said the enemy was defined in its ordinary sense and that restriction of the meaning to presidential proclamation was not proper in the circumstances.
“The defence has defined enemy to suit its own interests, but in the circumstances, the question of restricting the definition to a proclamation by the President is not proper,” he said.
Chief Supt Mukazhi spent close to three hours on the witness’s stand where he was being grilled by the defence team one after the other.
He opposed bail on the grounds that the offence was very serious and that there was overwhelming evidence that would induce the suspects to escape the jurisdiction of the country.
He said the evidence gathered by the police implicates the three as the ones responsible for the bringing in of the equipment and the transmission of the information.
Online Reporter