By Sanderson N Makombe – That the MDC is under immense dirty schemes emanating from Zanu Pf and the state machinery is very obvious. The ingenuity of this monster is well documented and at times celebrated. The pressures of operating under such an environment are undoubtedly high, so are the socio-economic pressures as well.

However that is not an excuse for the MDC to lower its guard and then cry foul play when caught in controversial criminal circumstances which are wholly avoidable. We have known these shenanigans since time immemorial and the vast experience we have had so far should weigh in when the unguarded moments befall us.

 I write specifically on the Chinotimba-Mahlangu phone saga and  issue of more than 15 MDC-T MPs who are under arrest, or been charged or will be charged for various alleged criminal offences.

I take note with relief that my dear friend Hon Minister Mahlangu is out of custody and the court will proceed by way of summons. The purpose of the whole saga was probably to splash the dirty on him and cause him to lose his parliamentary seat. When you are down, the worst that could happen is for your friends to write publicly about you. I do hope Hon Mahlangu will find the thesis of this article constructive. I have known Hon Mahlangu since the formation of the MDC in 1999.

We worked closely together especially when I was the MDC National Youth Coordinator and he was in the National Youth Executive. We have fairly kept in touch since I left Zimbabwe and we consider each other as friends. I  will also mention Hon Chebundo ,another MP whom I have known since the formation of the party and Archbishop Pius Ncube. Hopefully the contents of this article will not be viewed as lis sub judice, for it is not intended to apportion criminal blameworthy.

We all have  had  unguarded moments in our lives. We might leave home for wherever with no intention whatsoever to commit a criminal offence but end up potentially accused of one. Consider what happens when you go to the local shop and the shop keeper gives you more change by mistake? When you board the train from my home town  Rusape to Harare and the train reaches its destination without the ticket seller having come to you. Do you go to the selling point and pay for the journey or you just go home with a smile on your face? What about when the employer deposits two wages into your bank  account by mistake? Suppose you are walking in the park and you pick up lost camera.

After two weeks you overhear  a conversation in the bar about someone having lost their camera in the same park. Upon realising the owner do you return it to them? You are in a packed hall attending a wedding and your little daughter wonders around. You find her playing with a very expensive phone but you can’t figure out who the owner is. Do you give it to the MC or just keep it?

The above scenarios happen everyday in life. The course of action you take  when you come into contact with someone’s property could prove fatal to your character.Mahlangu’s case is a classic criminal theory  moot scenario on the crime of theft .I will borrow heavily from English law on this matter.

Section 1[1] Theft Act 1968[English law] defines the offence as ‘a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’. The mens rea  has two aspects [1] dishonest and [2] with the intention to permanently  deprive .Dishonest is the thesis of this article. Dishonesty as a concept is very complicated and difficult to define because it is very circumstantial.

 It is no coincidence that in  the crime of theft [English Law] dishonesty is an integral element in proving the offense. It is described as a moral marker employed to judge standards of behaviour to conclude whether criminal blame should be apportioned when someone interferes with someone’s property rights. The 1968 Theft Act actually does not define dishonest.

It rather provides three instances where a  particular defendant will not be dishonest [Sec 2]. The first is where one believes he has the right in law to deprive the other of his property on behalf of himself or another. Secondly, where one believes that he would have the consent of the owner if the owner knew of the appropriation and thirdly, where the owner can not be found.

It is the third ambit that makes interesting reading regarding Chinotimba’s phone. Normally if you pick out a lost property, finder’s keepers could well mean you having assumed ownership of that property. However the theft act provides that a defendant will not be guilt if he believes the owner cannot be found by taking reasonable steps. What are reasonable steps is very circumstantial.

The value, and nature of property, location of the find all are factors that affect reasonable steps. At the same time forgetting  something is not the same as intention to relinquish ownership. You may well forget your bag in the bus but surely you don’t intend to loose ownership of that bag. In English law the same concept was interestingly applied to include even goods thrown into the dustbin. Property in the bin is not abandoned.

It remains property of the owner of the bin. When it is collected, ownership transfers to the city council Williams v Phillips [1957] 41 Cr App R5.By the same token,Chinotimba by leaving his phone on the table did not wish to relinquish ownership of it and that placed whoever found that phone in an obligation to take reasonable steps to find the owner. That meant Hon Mahlangu giving the phone to the organisers of the conference, the police etc.It is no excuse that you did not have time to do so, better leave the item where it was found than create an opportunity for your enemies to tarnish you.

If it is true that that the sim card was thrown into the bin and Mahlangu remained with the handset, it means deliberately interfering with another’s property or according to the Theft Act, appropriation. You appropriate someone’s property if you treat it as your own to the exclusion of others. You exercise dominion over the property and treat yourself as the owner.

 The Theft Act Sec 3[1] defines appropriation as ‘any assumption of the rights of an owner’. These include use,disposal,transfer,trading etc which an owner is free to exercise over his own property. Thus taking off the sim card and throwing into the bin is assuming rights of an owner, so is the resulting crime of using the sim card without the owner’s permission.

Another angle of the story is that just after the disputed and stolen presidential and parliamentary elections last year, Mahlangu was brutally attacked by Zanu Pf thugs, war veterans and militias at an aborted rally which PM Tsvangirai was supposed to have addressed near Rotten Raw Courts, Harare. He was hospitalised having suffered head injuries.

 Knowing Chinotimba and his role in similar attacks organised in Harare, there is no doubt that the same phone right in Mahlangu’s hands was probably used by Chinoz to coordinate these attacks, and many other  farm invasions etc.In a lawful society that phone, an equipment used in organising crime would have been confisticated from him long back. Would Mahlangu been found to have acted  inappropriately if he had chucked the phone in the toilet and flushed it down? Remember the teacher’s  whipping sticks which we used to hide or throw out at school?

Which brings me to the issue of Hon Chebundo.He is accused of a more serious offence of raping a minor. In the first place how does that happen for him to be accused of such an offense? Obviously the CIO saw an opportunity somewhere and utilised it. It is no good to argue that the plaintiff was an implant of the CIO, the same argument advanced in defence of Archbishop Pious Ncube.Indeed it could be true but surely the CIO does not take off your pants and give you an erection.

It is your own lack of judgement that creates that opportunity. We give too much undeserved credit sometimes to the schemers in CIO yet it is really our lack of sound judgement that is pulling us down.Our moral credibility should not be questioned.A Zanu Pf MP faced with the same scenarios will definitely escape liability whereas an MDC MP will more likely be charged. Lets up our game!

The writer is a former MDC National Youth Coordinator and can be contacted at smakombe@btinternet.com