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Arbitrary
arrests and detention of the National Constitutional Assembly (NCA)
activists
Zimbabwe
Human Rights Association (ZimRights)
October 24, 2003
INTRODUCTION
22 October 2003
On the
22nd day of October 2003, the National Constitutional Assembly (NCA)
which is a conglomerate of human rights organisations, labour, women’s
groups, churches and political parties demonstrated in Harare, Zimbabwe
against the Government of Zimbabwe for a new, home-grown and people
driven constitution. Despite, the noble idea of clamouring for a new
constitution more than 400 demonstrators were arbitrarily arrested
and detained by the Zimbabwe Republic Police (ZRP) thereby violating
their freedom of expression, association and assembly as enshrined
in human rights instruments at national, regional and international
levels. amongst those arrested were three journalists, Sam Sithole
a photographer with Zimpapers, Blessing Zulu of the Independent Newspaper,
and Takunda Maodza from Zimpapers as well. The arrest of National
Constitutional Assembly activists demonstrates Government of Zimbabwe’s
continued onslaught against human rights defenders and journalists.
The right to organise is continuously curtailed. The National Constitutional
Assembly activists were previously arrested on 17 September 2003 when
they organised a similar demonstration.
THE FACTS
The NCA members
were arrested for lobbying and advocating for a new democratic peoples
constitution. They were also protesting against the collapse of the
economy and the failure by the government to deal with the severe
economic decay and the resultant hardships especially on the silent
majority. The arrest of Dr Madhuku and NCA members has become routine
and seems to strangely give the authorities some sadistic pleasure.
The right to freedom of association, expression, movement and assembly
are universally recognised and Zimbabwe has signed and ratified a
number of international treaties that secure these rights. These rights
are also provided for in the Constitution of Zimbabwe. Sadly Zimbabwe
has consistently failed to leave up to its commitments to its citizens
and the international community when it comes to the enjoyment of
these universal rights and fundamental freedoms.One
issue of grave concern to ZimRights is that when human rights lawyers
appeared at Harare Central Police station where Dr Madhuku and others
were detained, the police were completely uncooperative in that among
other things according to a statement issued by the Zimbabwe Lawyers
for Human Rights1,
- The police
manhandled human rights lawyers Beatrice Mtetwa and Arnold Tsunga
and pushed them out of the police station. A woman officer was
deployed at the entrance to physically prevent Beatrice Mtetwa
from re entering the police station. This is the second time when
Ms Beatrice Mtetwa has been subjected to such degrading treatment
with a space of ten days.2
- When other
human rights lawyers Alec Muchadehama, Jacob Mafume, Lawrence
Chibwe and 5 others also turned up at the Police Station, they
were initially also pushed out of the police station by the riot
squad who advised that they were instructed by a senior policeman
named Officer Dengu not to allow any lawyer to see the NCA members.
- The riot
squad thereafter maintained a presence at the police station’s
entrance physically preventing any lawyers from having access
to the charge office to represent the NCA members.
- When lawyers
now led by Advocate Gijima were eventually allowed access into
the charge office, Chief Superintendent Madzingo flatly refused
to allow lawyers access to the detainees and ordered one officer
Dowa to remove the lawyers from the law and order section of the
police force which Dowa promptly did.
- After over
5 hours of waiting the human rights lawyers left Harare Central
Police Station without having been allowed access to their clients,
let alone to even see them.
There was a
case of selective application of the law when the two journalists
from the government sponsored Zimpapers were released without charges
when their editor came to pick them up and also upon the police’s
realisation that they work for the government controlled media.
The journalists from independent media are always treated harshly
than those from the government controlled media. None of the two
journalists had accreditation papers.
The ZimRights
National Chairperson Mr Arnold Tsunga was physically manhandled
by a police detail when he attempted to assist the detained demonstrators.
This took place on the 22nd day of October 2003. This is not the
first time that the police and other law enforcement agents have
refused to allow suspects access to their lawyers. Such conduct
by the police is unlawful and undermines the due administration
of justice and the rule of law. It must be stopped. The attitude
of the police to the lawyers which continues to deteriorate at an
alarming rate in Zimbabwe is increasingly becoming an issue of serious
concern to the lawyers given that it is not possible to administer
justice in an environment where law enforcement agents will not
cooperate with lawyers and refuse to accept the rights of lawyers
to have unimpeded access to their clients. The rule of law will
not work in this type of environment.
The demonstrators
are being released today (23rd) upon payment of ZW$5 000-00 as admission
of guilt under the Miscelleneous Offences Act, Section 19 and 24.
On previous arrests (17 September, 2003), arrested NCA activists
were charged under the same Miscelleneous Offences Act though under
different sections. ZimRights is extremely concerned that the Miscelleneous
Offences Act is continuously being used to undermine due process
of the law and is also used to conceal the unprofessional conduct
of the police of arresting first and investigating later and arresting
when there is no reasonable suspicion that an offence has been committed.
Such conduct amounts to extortion as detainees are forced to buy
their freedom since they would not want to sleep for another night
in the police cells. The NCA activists want the police to investigate
and prove a case against them beyond any reasonable doubt.
ZimRights is
concerned about the police’s conduct of arrest of arresting and
then investing later. It is also worried that the police are deliberately
using the Miscellaneous Offences Act to harass human rights defenders.
No wonder why lawyers are contemplating challenging the continued
abuse of the Miscellaneous Offences Act to justify arbitrary arrests
and detention.
24 October
2003
The
Chairman of National Constitutional Assembly, Dr Lovemore Madhuku
was not released or allowed to pay a fine by last night (23/10/03).
During the morning
of 24 October 2003, Dr Lovemore Madhuku was placed on remand on
Z$10 000.00 bail. He is to appear in the magistrates court on Monday
27 October 2003. Morgan Tsvangirai, the leader of opposition, MDC
will also be in court on Monday 27th facing high treason
charges. The court premises will undoubtedly be filled with anxiety
and tension as two main characters fighting for political pluralism
are drawn before the courts. He is being charged under Section 24:6
of Public Order and Maintenance Act. The preferred charges under
POSA section refers to organising illegal demonstration or gathering
without police clearance.
It is important
to note that under POSA, if a demonstration is conducted and becomes
violent leading into the destruction of property, the organizers
are therefore liable for damages arising from the demonstration.
A case to note is when property was destroyed during the MDC organized
‘Final Push’ demonstrations – the Department of Information and
Publicity carried out a massive educational campaign encouraging
those whose property was destroyed to sue the organizers (MDC) for
the recovery of damages. This is the reason why Dr Madhuku by virtue
of his Chairmanship with the National Constitutional Assembly is
being drawn before the courts to represent his organization as ‘the
organisers’.
Lawyers representing
Dr Madhuku are currently filing a complaint against the police for
battering, ill treatment in custody and verbal abuse.
Meanwhile the
National Constitutional Assembly has called for a Press Conference
(24/10/03) at three o’clock GMT.
CONCLUSION
ZimRights is concerned
with the growing trend and pattern with regard to pre-trial detention
that under Criminal Procedure and Evidence Act the minimum period
of detention of 48 hours before being brought to a judge may be extended
– this practice is incompatible with Article 9 of the ICCPR. This
practice by the Zimbabwe law enforcement agencies provides opportunity
for ill treatment, abuse and intimidation of detainees. There is concern
that the prison and police holding cell conditions are deplorable
and pose a health risk to detainees – this has resulted in outbreak
of diseases due to overcrowding and lack of maintenance. Many detainees
in such situations as the case with NCA activists rather opt to pay
an admission of guilt than to remain held in over-crowded and squalid
conditions.
ZimRights calls upon the
Zimbabwe Republic Police to cease taking political orders and respect
the people’s rights to demonstrate for a noble cause. A new, home
grown and people driven constitution is long over due in Zimbabwe.
ZimRights believes that the current constitution is to a substantial
extent responsible for the economic and political turmoil in the
country.
1 Zimbabwe Lawyers
for Human Rights press statement
2 Beatrice Mtetwa a human rights lawyer was manhandled and assaulted
by a police detailed on 12/10/03
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fact sheet
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