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Treatment of advocate Eric Matinenga deplorable
Zimbabwe Lawyers for Human Rights (ZLHR)
June 14, 2008

Since the announcement of the results of the 29 March 2008 harmonized elections, Zimbabwe has witnessed an unprecedented increase in politically motivated violence, arson, torture, abductions and subsequent murders and killings. Individuals and institutions which have protested against the continued human rights situation have been unfortunately targeted, arrested and detained for purportedly causing or contributing to disaffection and, in the worst case scenario, inciting political violence. Lawyers, as officers of the court representing all accused persons regardless of their political persuasion and inclination, have also been targeted. One such disturbing case is that of Advocate Eric Taurai Matinenga.

Adv. Matinenga is a registered legal practitioner, a former President of the Administrative Court of Zimbabwe and currently an Advocate of the High Court of Zimbabwe, and the duly elected Member of the House of Assembly of Zimbabwe for Buhera West Constituency. He recently successfully sued the Zimbabwe Defence Forces (ZDF) to have them removed from his constituency over alleged harassment, torture and political persecution of MDC supporters in the constituency in violation of the military's constitutional mandate and functions (Case No. HC 2624/08).

On 31 May 2008 Adv. Matinenga travelled to Buhera to investigate the alleged arrest, assault and detention of his clients and to serve the court order he had obtained against the ZDF. On arrival at Buhera police station Adv. Matinenga stated the nature of his business and produced his Law Society of Zimbabwe identity. Adv. Matinenga was denied access to his clients and instead he was subjected to questioning by an officer he remembers only as Assistant Inspector Jim. The said officer advised Adv. Matinenga that he would not be allowed to see the accused persons but was free to leave but as Adv. Matinenga was protesting his right to see his clients, one Major Svosve, whose notoriety is recounted in the High Court papers in Case No. HC 2624/08, arrived and consulted privately with A/I Jim. On his return from his conference with Major Svosve, A/I Jim said he could no longer let Adv. Matinenga go. Adv. Matinenga was then ordered to go and wait at the Charge Office and he complied. When A/I Jim followed he advised Adv. Matinenga that he had been instructed to, and he had no choice but to, arrest and detain him on unspecified charges of "public violence".

One Muchinjikwa and another officer then asked to search Adv. Matinenga's car, which they did. Despite finding nothing of interest to them, they still impounded the car and confiscated the car keys. Adv. Eric Matinenga's wife had to walk to the main road and use other means of transport to go and find shelter for the night. This arrest occurred around 00.31hrs. At the time of the arrest of Adv. Matinenga, the arresting officer had no reasonable grounds to suspect him of having committed any offence, which is a key requirement in Zimbabwe law.

Adv. Matinenga was not informed "forthwith" by the person arresting him of the cause of arrest. This failure persisted even when Trust Maanda, one of Adv. Matinenga's legal practitioners, attended Buhera police station on Sunday 1 June 2008. The police officers at Buhera said that they did not know the reason for Adv. Eric Matinenga's arrest and were merely keeping him for CID Mutare.

When Mr. Maanda finally met the CID Mutare officers, namely Detective Sergeant Murambiwa, Detective Sergeant Jonhera and Chief Superintendent Makone, none of them knew the reasons for arrest and detention. Mr. Maanda was then allowed to see Adv. Matinenga who was still in the dark as to why he was being detained. At the Charge Office all that was in the Detention Book was an entry of Adv. Matinenga's name with no information of who had arrested him, as is required by law and the rules of criminal procedure. The CID officers left promising that they would return early Monday, 2 June 2008, to record statements from Adv. Matinenga and take him to court.

On Monday no statement had been recorded at all. Adv. Matinenga's lawyers, Tino Bere and Trust Maanda, inspected the detention book (DB) and it had entries which Adv. Matinenga had not seen before suggesting that one Chogugudza was the arresting officer and the alleged offence was "public violence". The car which had been taken the day before did not appear in the DB and had apparently been taken without legal formality. The lawyers then confronted Constable J. Kapfudza who was the person in charge at the Charge Office to tell them what they were detaining Adv. Matinenga for and she said she did not know. She said she could not release the vehicle.

Chief Superintendent Makone, who was said to be the Investigating Officer, finally arrived and he said he could not shed light on the allegations but was transferring Adv. Matinenga there and then to Mutare for appearance in court the following day. Chief Superintendent Makone asked them to come to the CID offices at 10:00hrs the next day if they wished to assist the accused to record a warned and cautioned statement. Adv. Matinenga was then transferred to Mutare by Chief Superintendent Makone and detained overnight at Mutare Central police station.

The officers who attended the next day were Detective Sergeant Murambiwa and Detective Sergeant Jonhera. The charge was " . . . contravening section 187 (1) (a) as read with section 26 (1) (a) of the Criminal Law (Codification and Reform) Act, incitement to public violence at Mbambata Nkomo's homestead and Muindisi Homestead of Gwebu Village Buhera on 31 May 2008 where it is alleged that accused incited MDC youths to attack ZANU PF supporters in Buhera West Constituency . . . ". Back at Mutare Central police station, the lawyers were advised that the allegations had changed and now had different names of the complainants and other details. The new charge was "public violence which occurred on 31st May 2008 between 9.00hrs and 24.00hrs at the following homestead all in Gwebu at Makotami Homestead, Phillip Gwebu's Homestead, Richman Gwebu's homestead, Wellington Ncube's homestead and Tinei Makwavarara's homestead, where it is alleged that accused paid monies to a group of about 50 to 60 MDC youths and thereafter thanked them for unleashing acts of violence against Zanu Pf supporters and further encouraged them to continue perpetrating violence against Zanu PF supporters. It is further alleged that the same youths went on to attack the aforementioned homesteads assaulting the occupants . . . ."

Adv. Matinenga denied the allegations and did so in writing and was asked questions which he answered in writing too. The lawyers then asked to go to court and were advised that it was too late. Chief Superintendent Makone went away and when he returned he advised that the lawyers should be available for further statement recording because he could be pressing more charges from investigations that he said were ongoing. The lawyers approached the Area Public Prosecutor to see if Adv. Matinenga could not be brought to court and were told that he was busy with some officials from Harare and could not attend them. The set-down prosecutor indicated that it was too late to hear any new cases and that in any event the prosecution could not expedite any case. Adv. Matinenga had therefore spent 72 hours since arrest in violation of the laws of the country and had no choice but to seek relief of the Magistrates' Court to have his arrest and detention declared unlawful and an order for immediate release granted. He averred that the allegations were politically motivated to silence him and his Constituents, punish him for challenging the army excesses in Buhera West and to intimidate MDC members in the area.

Regional Magistrate, Mr. Mwayera, ordered his immediate release on 5 June 2008 after Adv. Matinenga had spent four (4) days in custody, far beyond the legally provided period of detention. The court ruling indicated that there were no grounds for placing Adv. Matinenga on remand and the state could, if still interested, proceed by way of summons.

After a day of freedom, Adv. Matinenga was once again arrested at his Harare home on Saturday 7 June 2008 at around 06:00hrs and was driven off without being informed of why, and where the police were taking him. He was subsequently driven back to Buhera and detained at Murambinda police station. His lawyers urgently petitioned the High Court, presided over by Justice Chitakunye, who ordered the state to produce Adv. Matinenga at 10:00hrs on Sunday 8 June 2008 and show cause why he should not be released, failing which the state should release him forthwith. This provisional court order was served on all parties namely Officer in Charge, Murambinda police station, Officer Commanding Law and Order Mutare, and Investigating Officer, Chief Superintendent Sipo James Makone.

The representatives of the Attorney General asked to return at 14:15hrs with Adv. Matinenga, but failed to do so. Thus the provisional order was confirmed as the final order of the court. Chief Superintendent Sipo James Makone, made it clear to Mr. Bere and Mr. Maanda that he would not comply with the order but rather that the state counsel whom he said were in court would explain to the Judge why they were in contempt. Mr. Bere asked him if he realised that doing what he was doing was contempt of court and his reply was that "the state representatives will deal with the case". During these repeated exchanges other police officers were compelling Advocate Matinenga to sign a new warned and cautioned statement, which he continued to refuse to sign. He was then moved to Buhera police station.

The office of the Attorney General, represented by law officers who had travelled to and from Harare, Mrs Florence Ziyambi (the Director of Public Prosecutions) and Tawanda Zvekare, then lodged a chamber application for review of the decision of the High Court in the Supreme Court. This was intended to frustrate earlier efforts and orders by the Magistrate and High Court to release Adv. Matinenga. The two law officers had made repeated undertakings to produce him in court, but to no avail, despite being aware as officers of the court that there was a final order to have him released immediately. Adv. Matinenga's lawyers filed a contempt of court application which is now pending before the High Court.

On Tuesday 10 June 2008 the police, still in contempt of the Magistrates' and High Court order, moved Adv. Matinenga from Buhera police station to Rusape police station without lawful reason, especially as the police drove past the nearer Magistrates' Court in Murambinda and Mutare where the case was previously heard. He was detained in Rusape overnight, without again either being released or brought before the court.

On Wednesday 11 June 2008 in Rusape none of the magistrates were prepared to preside over the matter, even after the intervention of the Chief Magistrate. The magistrates were all aware of the existing and effective court orders as well as a pending application for contempt of court for all those who chose to aid and abet in the defiance of the Magistrates' and High Court orders.

With no warrant for further detention, Advocate Matinenga was locked up in the Rusape Police Cells, despite heavy protestation from his counsel of record. The decision to detain Advocate Matinenga was seemingly made by the arresting police officers (who had all day consulted with the Acting Director of Public Prosecution, two Assistant Commissioners and on the telephone with the Chief Magistrate and the Permanent Secretary of the Ministry of Justice), who simply decided and announced that they would re-detain Adv. Matinenga and take him back to police cells.

Adv. Matinenga's lawyers returned to Rusape Magistrates' Court on Thursday 12 June 2008 to argue for their client's immediate release. Once again, a magistrate could not be found and Adv. Matinenga was returned to cells. On Friday 13 June 2008 Chief Magistrate, Herbert Mandeya, travelled from Harare to hear the matter as magistrates in the area all continued to refuse to preside. The AG's office argued for the state that the Supreme Court application for review meant the High Court order was suspended, which position was vehemently challenged by Adv. Matinenga's legal representatives. Judgment was reserved to 10:00hrs the next day, and Adv. Matinenga spent his seventh night in unlawful detention.

In a decision on Saturday 14 June 2008, Chief Magistrate Mandeya placed Adv. Matinenga on remand for the same charges dismissed by the previous magistrate on 4 June 2008 and despite the High Court order for his release dated 8 June 2008. An application was made for bail. Bail was granted and Mr. Zvekare on behalf of the state invoked section 121 of the Criminal Procedure and Evidence Act to keep him in custody pending appeal of the decision to grant bail. No reasons were provided, and Adv. Matinenga was then remanded in custody to 26 June 2008 at Rusape Remand Prison. Adv. Matinenga's lawyers have been instructed to lodge a constitutional challenge of the validity of section 121.

Zimbabwe Lawyers for Human Rights (ZLHR) remains deeply disturbed by this sequence of events which, to any reasonable person, can be perceived as a pattern of systematic persecution rather than a legitimate prosecution. Adv. Matinenga is a senior lawyer and member of the Law Society of Zimbabwe, as well as of ZLHR, and has spent his professional life representing human rights defenders of all political persuasion without fear or favour. His decision to stand as Member of the House of Assembly in order to work for a better life for his constituents in Buhera West and the treatment he has received as a result violates his constitutional right to participate in the government of his country. The violation of his rights as a detained person will have a chilling effect on the lawful activities of others like him, as the state is no longer able to assure the public that it is willing to comply with its constitutional and international legal obligations to protect the rights of accused persons.

It is further shocking and disturbing to ZLHR to witness and recount the repeated and continued defiance and contempt of court orders by state representatives from law enforcement and protective institutions. This incident undermines the confidence of society at large in our institutions of protection such as the police and the courts.

ZLHR urges:

1. The Zimbabwe Republic Police and the Office of the Attorney General to maintain their independence, impartiality and professionalism and to ensure that the constitutional provisions protecting the rights of an accused person are respected at all times.
2. All state representatives to comply with orders of the courts of Zimbabwe in efforts to ensure that impunity is countered and they adhere and are seen to be adhering to the rule of law and the separation of powers.
3. The regional observer missions currently in the country, and those following, to investigate and take up this grave matter with the relevant authorities and provide public assurances and information of their interventions to the legal profession in this regard.
4. The SADC mediator, President Thabo Mbeki, to immediately and diligently investigate this state of affairs and make a public statement on action taken, information received, and steps which will be taken to ensure the safety of the legal profession and popularly elected political party representatives, as well as reduce the threats to peace and security in Zimbabwe and the region in the run-up to the presidential election run-off, and beyond 27 June 2008.

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