Gays and Lesbian of Zimbabwe (GALZ) chairperson Martha Tholanah (right) and director Chester Samba at the Harare Magistrates’ Court yesterday
Fungai Lupande Court Reporter
Gays and Lesbians of Zimbabwe chairperson Martha Tholanah was yesterday summoned to court to stand trial for operating the organisation without registering it in terms of the Private and Voluntary Organisations Act.
Tholanah (48) of number 1193 Sunningdale 3 in Harare is also co-director of GALZ.
She appeared before Harare magistrate Mr Donald Ndirowei facing charges of running an unregistered organisation in contravention of Section 6(1)(3) of the Private Voluntary Organisation Act (Chapter 17:05).
According to the State, 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 gay and lesbian activities” in contravention of the PVO Act.
Tholanah is represented by lawyer Mr Tonderai Bhatasara.
However, the trial failed to proceed after the lawyer made an application for exception of the charges.
He told the court that the charge, even if proven, does not disclose an offence. Mr Bhatasara added that the allegation that the organisation was operating without registration had been placed before the High Court (case number 1240 of 2013).
He produced a High Court order stating that GALZ is not obliged to register in terms of the PVO Act (Chapter 17:05) as it was not a private voluntary organisation and was specifically exempted by the law.
“This order has not been set aside by any competent law neither had it been appealed against. Therefore the current charge becomes bad in law. I pray that the charges be quashed and accused acquitted,” he said.
Prosecutor Ms Francesca Mukumbiri requested for time to go through the documents in order to respond adequately. Mr Ndirowei postponed the matter to February 26.
The State alleges that on August 20, 2012 at around 6pm, detectives from CID Law and Order received information that GALZ was conducting illegal activities at their premises.
Detective Assistant Inspector Ben Justen led a team of detectives and conducted a search of the premises.
Police recovered laptops, pamphlets and DVDs allegedly used in the illegal activities.
The organisation failed to produce a registration certificate in terms of the PVO Act (Chapter 17:05).
Recovered literature includes the GALZ constitution from which the organisation derived its name and membership structure. Magazines and DVDs taken from the premises are being held as exhibits.
On January 14, 2014 High Court judge Justice Priscilla Chigumba ordered the police to return the GALZ property.
Justice Chigumba said the search and seizure were 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.