Case History: Martha Tholanah
On 26 February 2014, a Harare court Magistrate quashed charges of running an “unregistered” organisation which had been pending against human rights defender Ms Martha Tholanah.
Martha Tholanah is Chairperson of Gays and Lesbians of Zimbabwe (GALZ). GALZ is an association founded in 1990 that advocates for social tolerance for sexual minorities and the repeal of homophobic legislation in Zimbabwe.
On 26 February 2014, a Harare court Magistrate quashed charges of running an “unregistered” organisation which had been pending against human rights defender Ms Martha Tholanah. The ruling vindicates the work of Gays and Lesbians of Zimbabwe (GALZ), which represents and protects the rights and interests of LGBTI people in Zimbabwe.
The State had alleged that Martha Tholanah, with the knowledge that GALZ was not registered, “unlawfully took part in the management of the organisation by gathering its members and continued to carry out activities while engaging in gays and lesbians activities” in contravention of the Private Voluntary Organisation (PVO) Act. This was in spite of the fact that a 14 January 2014 High Court ruling had stated that GALZ is not obliged to register in terms of the PVO as it is not a private voluntary organisation and is specifically exempted by the Act. GALZ is actually a registered Common Law Universitas.
The ruling of 26 February 2014 also noted that the High Court had ordered high-ranking members of the police force and the Minister of Home Affairs to return property confiscated during a raid on the GALZ office in August 2012.
On 24 February 2014, human rights defender and chairperson of Gays and Lesbians of Zimbabwe (GALZ), Ms Martha Tholanah, appeared in court on charges of running an “unregistered” organisation. The human rights defender pleaded not guilty to the charges against her, and her lawyer asked the court to refer to a High Court Order granted to GALZ on 14 January 2014.
The charges against Martha Tholanah date from a raid conducted by police in August 2012 at the GALZ offices in Harare during which materials, including computers and fliers, were confiscated. The search at the GALZ offices was preceded by instances of police harassment of members of GALZ.
With her appearance in court on 24 February, Martha Tholanah was complying with a summons to appear before the court and answer charges of running an unregistered organisation in contravention of the Private Voluntary Organisation (PVO) Act. According to the summons, the human rights defender “unlawfully took part in the management of the organisation by gathering its members and continued to carry out activities while engaging in gays and lesbians activities”.
During the case, the human rights defender's legal team referred to a High Court Order of 14 January 2014, in which a High Court Judge ordered high-ranking members of the police force and the Minister of Home Affairs to return the property confiscated during the above-mentioned raid. The Court also declared the search warrant used during the raid invalid. The search and seizure, the High Court Judge said, was unlawful and contravened the rights of GALZ as specified in Section 17 of the former Constitution of Zimbabwe and Section 57 of the current Constitution of Zimbabwe. The High Court Order further stated that GALZ is not obliged to register in terms of the Private Voluntary Organisations Act as it is not a private voluntary organisation and is specifically exempted by the Act.
In response to the reference, the prosecutor in the case against Martha Tholanah stated that she had not been made aware of the order and requested more time to respond adequately to it. Martha Tholanah's legal team responded that, at the last remand hearing, the High Court order had been furnished to the state, however the prosecutor insisted that postponing the case to 26 February would not prejudice the human rights defender in any way.
On 4 December 2013, human rights defender Ms Martha Tholanah was summoned to appear in Rotten Row Magistrate Court. She has been charged with running an “unregistered” organisation under Section 6 (iii) of the Private Voluntary Organisation (PVO) Act and will appear in court on 12 December 2013. The summons, stamped on 7 November 2013, was served to Martha Tholanah's lawyer, Tonderai Bhatasara, a member of Zimbabwe Lawyers for Human Rights.
On 23 August 2012, Martha Tholanah was charged with running an “unregistered” organisation after officers from Harare Central Police Station executed a search warrant at the GALZ offices. The police indicated that nothing illegal was found in documents or computers, however they advised that the confiscated materials would not be returned until the case was concluded. At the time, Martha Tholanah was told that she would be summoned under the PVO Act.
The search at GALZ office was preceded by instances of police harassment. On 20 August 2012, the police attempted to enter GALZ offices, but no members of staff were in the offices at the time. On 21 August 2012, unidentified members of the Zimbabwe National Army reportedly patrolled the GALZ offices and recorded details from caretaker's documents with information on people who had visited the GALZ offices in recent months, including one visitor's phone number.
On 11 August 2012, thirty one men and thirteen women members of GALZ were assaulted, arrested and detained at Harare Central Police Station following the launch of the GALZ Violations Report and Briefing of the second draft Zimbabwe Constitution. Members of Zimbabwe Lawyers for Human Rights were denied access to the detainees. They were all released within a day.