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Peace Project staff and other abductees located - Peace Watch 28/08
Veritas
December 30, 2008

Jestina Mukoko, Broderick Takawira and Pascal Gonzo of the ZPP were located in police custody on Tuesday 23rd.

A good number of the other abductees were also reported on Tuesday to be at various Harare police stations.

Jestina, Broderick and seven others who were abducted at the end of October - Collen Mutemagau and Violet Mupfuranhehwe, their two year old son Nigel, Concillia and Emmanuel Chinanzvavana, Fidelis Chiramba and Pieta Kaseke - were brought to the Magistrates Court on Christmas Eve. [Pascal has still to be brought to court]

Jestina and the others were remanded to Harare Remand Prison. On Christmas Day they were picked up and taken to Chikurubi - the women to the female prison and the men to the maximum-security prison. Subsequently the women [except Violet and her child] were also moved to maximum security.

Hearing at Magistrates Court on Monday 29th

All those remanded on Christmas Eve and who are now at Chikurubi are due to be brought to the Magistrates Court at 8.30 am Monday. Lawyers also expect a number of other abductees to be produced at the Magistrates Court on Monday - they include Gandhi Mudzingwa, Andrison Shadreck Manyere, Zacharia Nkomo, Mapfumo Garutsa, Chinoto Zulu, Regis Mujeyi and Chris Dhlamini.

Update from Chikurubi Maximum Security Prison

Lawyers were able to see Jestina and the other women briefly when they were in the female prison [but were not permitted to conduct lawyer-client interviews]. Before going into court on Wednesday Jestina Mukoko reported to the lawyers that she had been beaten. The other women all said the same. The mother of the 2-year old reported that the child had also been beaten. They have not been taken to a hospital or doctor or been seen by a prison doctor to ascertain what injuries they have sustained. The lawyers have not had access to the male prisoners and since the women were moved to maximum security were allowed no further access to them.

Update on abductees not brought to Court

Abductees located by lawyers

Police have confirmed that they have in custody: Pascal Gonzo [ZPP]; Zacharia Nkomo; Andrison Shadreck Manyere [journalist]; Chris Dhlamini; Gandi Mudzingwa; Chinoto Zulu; Regis Mujeyi; Tawanda Bvumo; Mapfumo Garutsa; Mr Makwezadzimba.

Abductees - Whereabouts still unkown

Despite several court orders for police to produce or search for the following who are also known to have been forcibly abducted to date there has been no news of them: Fanwell Tembo, Larry Gaka, Terry Musona, Agrippa Kakonda, Lloyd Tarumbwa, Gwenzi Kahiya, Lovemore Machokota, Charles Muza, Ephraim Mabeka, Edmore Vangirayi, Peter Munyanyi, Bothwell Pasipamire, Graham Matehwa, Clever Mudzingwa. It is hoped that they will be among those brought to court on Monday.

[Note: these lists are from Zimbabwe Lawyers for Human Rights reports of cases they are investigating and may not be complete.]

Unknown abductees

There may be other persons, as yet unknown, being unlawfully detained following abduction. This concern has been prompted by lawyers' discovery, during their police station visits on Tuesday 23rd December, of two individuals not previously known to have been abducted.

Sequence of recent events

31 October: 14 abductions were reported in Mashonaland West.

4 November: these abductees were taken from police custody by "State Security Agents" [this was subsequently reported by police - see below]

5 November: ZANU-PF accused Botswana of training MDC youths to destabilise Zimbabwe at an extraordinary meeting of SADC security ministers. Botswana denied the charges and immediately asked the SADC grouping's Organ on Politics, Defence and Security Troika as well as the Zimbabwean government to undertake a fact-finding mission to Botswana to probe the allegations. Motlanthe, both in his role of South African President and Chairman of SADC, subsequently said he did not believe in these accusations.

11th November: Lawyers secured an order from Justice Hungwe declaring the detention of the 14 abductees unlawful and ordering the police to release them immediately and that if they had charges against them to proceed by way of summons. The police failed to comply with the order. From then on the whereabouts of the abductees were unknown. [Note: the police now claim that they surrendered custody of these abductees to the "State Security Agency" on 4th November. The police failed to divulge this information to the lawyers or to Justice Hungwe.] .

25 November onwards: There was another spate of enforced disappearances/abductions: including the following: 25 November - Chris Dhlamini MDC-T security director; 3 December - Jestina Mukoko [ZPP]; 5 December - Zacharia Nkomo; 8 December - Pascal Gonzo and Brodrick Takawira [both ZPP] and Gandhi Mudzingwa [former personal assistant to MDC President]; 13 December - Andrison Shadreck Manyere [freelance photojournalist], Bothwell Pasipamire and Peter Munyanyi; 17 December - Graham Mutehwa.

There were in all an estimated 40 plus abductions. These all followed a similar pattern - witnesses reported armed personnel in a number of vehicles being seen forcing the abductee into one of the vehicles - In none of these cases were the whereabouts of the persons divulged to lawyers by police, making the cases fall into the category of enforced disappearances.

9th December: High Court Judge Gowora ordered the police [who denied she was in their custody] to search for Jestina, to work with her lawyers and report daily on their progress. This order was not complied with.

Rumours abounded that the "disappeared" were alive and were to be produced as evidence of military recruitment and training in Botswana

19 December: Tsvangirai's ultimatum: that if the abductions did not cease immediately, and if all the abductees were not released or charged in a court of law by January 1 2009, he would be asking the MDC's National Council to pass a resolution to suspend all negotiations. The indications are that President Motlanthe then put pressure on Mr Mugabe to comply.

23 December: A number of the "disappeared" were discovered in police custody: following up information received, teams of lawyers from Zimbabwe Lawyers for Human Rights visited various police stations in and around Harare and established that at least 14 abducted individuals were being detained. The lawyers' task tracing them was hindered by individuals and groups being moved from station to station and the lack of cooperation by officers in charge. Those "discovered" included Jestina Mukoko and both her colleagues from the Zimbabwe Peace Project and some of the abductees taken on 31st October. The lawyers were not allowed access to any of their clients. During the night police searched the home of Jestina Mukoko in Norton, and Jestina was seen with them.

24 December: 8 of the abductees appear at Magistrates Court: on the charge of contravening section 24(a) of the Criminal Law Code [recruiting persons to undergo training in Botswana in order to commit acts of armed insurgency - for detailed charge see below] and an alternative charge of incitement to contravene that section. The defence lawyers opposed the application, arguing that a remand was precluded by the illegality of their clients' detention over several weeks [ the law states that a person can only be held by the police for 48 hours before being brought to court] and by police defiance of earlier High Court orders. The magistrate, Mr Guvamombe postponed the proceedings until Monday 29th December and ordered the "accused" to be remanded in custody until then.

24th December evening: an urgent High Court application on behalf of 32 abductees was heard by Justice Omerjee who issued a final order at 9 pm directed to the Commissioner-General of Police and Chief Superintendent Magwenzi [who had earlier told lawyers that he was responsible as investigating officer for all the abductees currently in custody]:

• to release Jestina Mukoko, Broderick Takawira and another 7 abductees who are being held under warrants of detention [listed in the Newsflash above] forthwith to the Avenues Clinic under police guard, until 29th December when they will appear at the magistrates' court and that while in hospital, they are to have access to their lawyers and relatives.
• to release the 11 covered by Justice Hungwe's order of 11th November - this includes the 6 [+ child] brought to court on Christmas Eve
• to release another 11 abductees [he declared their detention unlawful as they had not been arrested, but were abducted].

Justice Omerjee's order has not been complied with.

Furthermore lawyers have now been informed by police that there is to be no access of lawyers to the "abductees", no food to be delivered to them and no visits even by close relatives.

Details of the charge against Jestina et al

The main charge levelled against Jestina Mukoko, Broderick Takawira [ZPP] and the other six abductees appearing in the Magistrates Court on Christmas Eve was of recruiting persons to undergo training in Botswana in order to commit acts of insurgency. They are accused of contravening section 24(a) of the Criminal Law Code - "24 Recruiting or training insurgents, bandits, saboteurs or terrorists: Any person who-(a) recruits, assists or encourages any other person to undergo training inside or outside Zimbabwe in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe; . . . .shall be guilty of recruiting or training an insurgent, bandit, saboteur or terrorist and liable to imprisonment for life or any shorter period." These acts are defined in section 23 as acts, accompanied by the use or threatened use of weaponry, committed for the purpose of causing an insurrection in Zimbabwe or causing forcible resistance to the Government, the Defence Forces or the Police Force. The penalty is imprisonment for life or any shorter period. [Note: this is an offence taken over from the notorious POSA - the Public Order and Security Act.] They are also facing an alternative charge which carries the same penalty: contravening section 187(1)(b) of the Criminal Law Code as read with section 24(a), which accuses them of incitement to recruit persons to undergo training, etc.

Bail Application may have to go to the High Court

The offence charged is specfied as a serious charge for which the Magistrates Court cannot grant bail without the personal consent of the Attorney-General [Criminal Procedure and Evidence Act, section 116, proviso (iii), as read with Third Schedule, Part I]. If that consent is not given, an application for bail will have to be made to the High Court, and the accused persons will have to produce evidence to satisfy the judge "that exceptional circumstances exist which in the interests of justice permit his or her release" [Criminal Procedure and Evidence Act, section 117(6)(a)].

This is why it is so important that the lawyers win their argument that they should not be put on remand. The lawyers basic argument is that the State is not coming to court with clean hands. Basic constitutional rights have been breached. Their "arrests" did not conform to legal requirements [according to witnesses they were armed abductions]; they have been held for weeks over the legal 48 hour period. Unfortunately the lawyers' consensus is that the State will not listen to the justice of their argument.

The police were uncooperative and denied knowledge of their whereabouts; lawyers had to search from police station to police station. In the Magistrates Court hearing on Wednesday the prosecutor tried to excuse the police by saying the abductees had been taken from the police by state security agents. But, according to Zimbabwean law only the police have powers to keep people in detention after an arrest has been effected. They should not surrender people in their custody to agents who do not have the legal power to detain persons. The police have also quibbled over court orders to search for abductees, claiming that they could not look for them if they were in the hands of state security or the military. This is incorrect. The police have the power under their Constitutional responsibility to enter all premises in Zimbabwe, including military and CIO premises, in the course of investigations. The UN Declaration on enforced disappearances states that "competent national authorities shall have access to all places where persons deprived of their liberty are being held and to each part of those places, as well as to any place in which there are grounds to believe that such persons may be found."

The accuseds' right to a prompt and effective judicial remedy as a means of determining their whereabouts or state of health was denied. In some cases there were inexplicable delays in hearing urgent court applications. Seven High Court orders have been flouted. The accuseds' rights to have access to lawyers and medical assistance were not respected, and there is also the likelihood they may have been beaten and tortured during this time in order to extract "confessions".

As well as contravening the Zimbabwe Constitution and law all this has been a flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in other international instruments, in particular the African Charter of Human and Peoples Rights.

Zimbabwe's culture of impunity

Impunity means freedom or safety from punishment, from the consequences of one's actions. This week's developments relating to the persons abducted over the past two months provide another striking illustration of the extent to which a culture of impunity has become entrenched in Zimbabwe. There has been breathtaking disregard for the constitutional and legal rights of the abductees by the police and State Security agents. High Court orders issued to enforce and protect those rights have been ignored. Those responsible for the abductions have acted with impunity, confident that they enjoy freedom to break the law without ever having to suffer the consequences - that the government will protect them - that they will not be held accountable, will not be disciplined, arrested, prosecuted, sued for damages.

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