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Three released on bail - Peace Watch
Veritas
April 18, 2009

Newsflash

Last 3 Abductees Released on bail: Andrisson Manyere, Gandhi Mudzingwa and Chris Dhlamini have been at last released on bail. Justice Hungwe had granted them bail on 9th April, but the State immediately blocked their release by notifying its intention of appealing to a judge of the Supreme Court against bail. But the State appeal was not lodged within the 7 days stipulated by law. In an unfolding legal drama, although the State managed to get the required permission to appeal, this was not obtained in time and the three had already become entitled to their liberty and they were released on bail on Friday evening. So, on this occasion at least, the delays that have dogged these cases worked in favour of the abductees.

Update on Peace Worker Abductees

Jestina Mukoko and Broderick Takawira of the Zimbabwe Peace Project are still facing criminal charges - as members of the recruiter group. They are both out of custody on bail and trying to recover from their experience of being abducted, "disappeared" and tortured.

Update on Political Abductees

All the abductees - the group of 9 accused of recruiting for training in insurgency and the group of 7 accused of sabotage and bombing - are now out on bail. [See end for summary of court cases since 31st March.] Like the peace workers they are trying to heal from their experiences of having been "disappeared" and tortured. After the experience that these "hostages to political expediency" have gone through, the conditions they need to recover from their experience are still not being met. In spite of being treated medically for their injuries and medical conditions caused by their torture and detention in bad conditions, they are not being allowed to recover emotionally from their ordeals. The first priority after such an experience is to feel safe and then after that to try and normalise one's life again. None of the abductees feel safe after such an experience - they were abducted when going about their normal life and they feel they could be abducted and just "disappear" again, this time never to be found. The constant reporting to police demanded by their bail conditions reminds them of their ordeals, the constant court cases keep them in a state of tension and make them feel vulnerable and exposed. None of them can pick up on normal life with the threat of a trial hanging over them.

Trial Dates Finally Set

• 8th June for Fidelis Chiramba, Concillia Chinanzvavana, Emmanuel Chinanzvavana, Pieta Kaseke, Violet Mupfuranhehwe and Collen Mutemagau on recruiting charges [the recruiter group has been split into two for purposes of trial]
• 29th June for the bomber group [Chris Dhlamini, Gandi Mudzingwa, Andrison Manyere, Zachariah Nkomo, Regis Mujeyi and Mapfumo Garutsa]
• 20th July for Jestina Mukoko, Broderick Takawira and Audrey Zimbudzana [the rest of the recruiter group] on recruiting charges.

Jestina Mukoko's Supreme Court case, raising the breaches of her constitutional rights by State agents [abduction, illegal detention, torture, etc], is likely to be heard in May. Success in this case could result in the termination of the criminal proceedings against her if the Supreme Court considers that to be appropriate redress for breaches of the Constitution found to have been committed. This would be a test case that could be applied the others.

Are These Trials Necessary?

There is a widespread conviction in the country and outside that the charges against the abductees are trumped up and politically motivated - that the abductees are the unhappy victims of cynical manoeuvring by the then governing party and its agents in the tortuous run-up to the formation of the Inclusive Government and now as part of a behind-the-scenes bargaining process in which the old guard seeks a blanket amnesty for all past wrongdoing. This conviction is bolstered by the perception that the determination with which the State is persisting with the cases is not matched by action against those accused of notorious crimes against MDC-T supporters, including the torture of the abductees. Another suggestion made is that their lengthy illegal incarceration, coupled with the torture to which they were subjected by State Security personnel, renders criminal proceedings against them an abuse of the process of the court.

Do these cases really have to come to trial? No. While it is true that no-one, not even the President, can order the Attorney-General to drop the charges [Constitution, section 76(6) and (7)], there would be nothing wrong in principle were the President or the party principals or JOMIC to convey to the Attorney-General a strong belief that the national interest would be best served by stopping these proceedings at once. And it would be in order for the Attorney-General to accept that advice and withdraw the charges. [There is no constitutional or legal principle that prevents him doing so.]

Persisting with the charges is also doing nothing for the national healing process. It could be the first concrete action of the Organ of National Healing headed by Minister John Nkomo [ZANU-PF], Minister Sekai Holland [MDC-T] and Minister Gibson Sibanda [MDC-M] to press for the charges to be dropped as a gesture of reconciliation. It would show the nation that they are in earnest. These cases are a running sore, and damage the image of the new government.

The Organ could also show its commitment to national healing by backing enquiries in Parliament on the use of torture by police and State security personnel, to ensure not only that the practice is stopped, but also that perpetrators are brought to book.

New Allegations of Torture by Police

Seven farm workers who were arrested ten days ago have alleged that they were all brutally tortured by the police in an effort to force false statements from them.

Questions on Torture in Parliament Not Answered Satisfactorily

On 1st April the Ministers of Home Affairs faced two questions about torture in the House of Assembly:

1. Why has Zimbabwe not ratified the UN Convention on Torture?

Minister Mutsekwa [co-Minister of Home Affairs] said he was trying to ascertain why papers prepared in 1995 for Parliamentary approval of the Convention had not been processed. This should be pursued, as the real question is if the Government is going to take the necessary steps for Zimbabwe to become party to the Convention. The same question arises for the important Optional Protocol to the Convention. Getting Parliamentary approval of the Convention and the Protocol is a necessary step in the process, but the decisive final step is for the Government to file the appropriate legal documents with the United Nations. [See further below.]

2. Whether the ministry has approved the alleged torture of suspects as a means of getting confessions, and, if not, why suspects are still being tortured and evidence obtained through such means used in courts?

Minister Mutsekwa said the Ministry does not approve of this and pointed out that such confessions are not admissible in court. Disappointingly, this answer fell noticeably short of an outright condemnation of torture as conduct totally unacceptable in principle.

The Government must do better than this if it is improve its credibility in Zimbabwe and internationally. The formation of the Inclusive Government has raised expectations that not only would torture be a thing of the past but also that torturers would be brought to book. [Torture is prohibited by our Constitution and constitutes a serious criminal offence.]

A Suggestion: Action Plan for Joining up to Torture Convention and Optional Protocol

• Section 111B of the Constitution requires prior Parliamentary approval before Zimbabwe becomes party to international treaties and conventions. Approval is granted by resolutions passed by both Houses. The appropriate resolutions approving the Convention and the Optional Protocol could be passed by the Senate and the House of Assembly as soon as Parliament resumes sitting in May.
• Because Zimbabwe was not a signatory of the Convention and the Optional Protocol when they were drawn up in 1984 and 2002, respectively, the technical procedure for becoming party to them is for the Government to lodge instruments of accession with the Secretary-General of the United Nations. An instrument of accession is a simple legal document signed by the President on the recommendation of Cabinet.

Suggested targets for action:

• Parliament to approve Convention on Torture and the Optional Protocol to the Convention not later than 21st May
• Government to lodge instruments of accession with the United Nations before the 26th June [26th June is the anniversary of the coming into force of the Convention in 1987 and is recognised as "International Day in Support of Torture Victims"].

Update on "Political" Court Cases

The "recruiter group" [9 persons accused of recruiting persons for training as terrorists, saboteurs or insurgents]

9th April - their case came up again at the magistrates court on - the date on which the State had previously undertaken to serve the formal legal documents indicting them for trial before the High Court ["indict papers" state the charges in detail, give date of trial, summarise the State case, list State witnesses, etc]. The Director of Public Prosecutions gave the excuse that the papers were not ready because of a breakdown of typing and printing facilities in the Attorney-General's Office and asked for a further two weeks' remand in which to complete preparation. Despite the defence lawyer's objection, the magistrate remanded all the accused until the 24th April - but relaxed the reporting condition [from twice weekly to once weekly] and scrapped the travel restriction.

The "bomber group" [7 persons accused of sabotage]

9th April - bail was granted to the 3 still in custody [4 have been on bail for some weeks]. The State blocked release initially, but this has now fallen away and they were released on bail on Friday [see Newsflash at beginning]. Their case will come up again in the magistrate's court on 29th April when the State has said it will be ready with the documents indicting them for trial before the High Court commencing 29th June.

[Note: Once the State has served the "indict papers" there will be no further need for regular magistrates court remand hearings - the next court hearings will be when the various High Court trials commence.]

Roy Bennett

Roy Bennett is next due in Mutare Magistrates Court on 21st April for a remand hearing. He is on bail awaiting trial on allegations of possessing arms of war in 2006, contrary to section 10 of the Public Order and Security Act.

Dr Tichaona Mudzingwa

Dr Mudzingwa's trial in the High Court has been postponed to 27th April. He was arrested in April 2008 on accusations of attempting to cause disaffection among members of the defence forces by misinforming soldiers that Mr Tsvangirai had won the March 29 Presidential election. Dr Mudzingwa's trial has now been held up on five separate occasions because a senior Army officer has repeatedly failed to turn up to testify as a State witness, pleading the call of official duties. Dr Mudzwingwa, a physician who has distinguished liberation war credentials, is the MDC's secretary for defence and home affairs. He now serves as Deputy Minister of Transport in the government of national unity.

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