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Mukoko loses latest bid for freedom
The Herald
January 01, 2009

http://www.herald.co.zw/inside.aspx?sectid=2039&cat=1

Director of Zimbabwe Peace Project Jestina Mukoko and 15 others accused of recruiting people for banditry training and bombings were yesterday remanded in custody by the Harare Magistrates' Court since the matter regarding their release is now before the Supreme Court.

But after a later application was heard in chambers, the High Court will tomorrow rule whether Mukoko should be moved from Chikurubi Maximum Security Prison to the Avenues Clinic as ordered by the High Court last week.

In the morning hearing, provincial magistrate Mr Mishrod Guvamombe placed all 16 on remand to Monday next week, saying High Court orders by Justice Charles Hungwe on November 11 and Justice Yunus Omerjee on December 24 ordering their release had been superseded by the State's appeal to the Supreme Court.

On Monday, defence lawyers are expected to mount applications for refusal of further remand in the magistrates' court.

However, Mr Guvamombe released two men — Pascal Gonzo and Tawanda Bvumo — who were accused of the lesser offence, assisting some of the 16 to evade the police, since the two were not cited in the Attorney-General's appeal filed in the Supreme Court on Monday and so were subject to the original High Court order.

"It is trite law that an appeal from the High Court to the Supreme Court suspended the operation of the court order by the High Court.

"It's common cause that Justice Omerjee ordered the release of the accused persons and that the AG lodged an appeal to the Supreme Court on December 29 against the release of all the accused persons save for Pascal Gonzo and Tawanda Bvumo.

"In my view, it is Justice Omerjee's ruling that incorporated that of Justice Hungwe, which is now for consideration. I am unable to override clear High Court and Supreme Court rules.

"Accordingly, the accused persons should be remanded. The application to ask the court to decline remanding the accused persons, therefore, fails," Mr Guvamombe said.

In yesterday's second hearing, Mukoko's case returned to the High Court.

Justice Alfas Chitakunye — after hearing arguments from both the defence and prosecution counsel on an application for her release to the Avenues Clinic — reserved judgment to tomorrow.

The defence, led by Ms Beatrice Mtetwa of Mtetwa and Nyambirai, had petitioned the High Court to compel the State to release Mukoko and also to disclose the manner in which Mukoko was arrested for offences against the State in terms of the law.

However, the prosecution — led by Chief Law Officer Mrs Virginia Mabhiza, assisted by the Director of Public Prosecutions Mrs Florence Ziyambi — strongly opposed the application.

Ms Mabhiza argued that the court could not be compelled to make an inquiry in a matter where police investigations were underway.

She also objected to having the State forced to disclose any operations pertaining to State security.

"Our legal system is not inquisitorial but accusatorial by nature. Therefore, courts are not obliged to delve into such inquiries," Mrs Mabhiza told The Herald.

To support the argument of the State, Mrs Mabhiza produced a ministerial certificate signed by the Minister of State Security, Cde Didymus Mutasa, which also opposed the application.

The certificate, among other things, Mrs Mabhiza said, stated that for the sake of State security "it shall not be necessary to cause the parading or identifying of State agents responsible for interrogating the appellants (Mukoko and her co-suspects) in the case".

Ms Mtetwa said the defence wanted the State to disclose the identity of the State agents who allegedly kidnapped Mukoko.

"The State submitted that the matter is sensitive and that investigations in this case should be kept a closely guarded secret.

The defence wanted a full inquiry instituted into the alleged kidnappings and that police arrest the kidnappers before the court could deal with "these people as accused persons".

Former police superintendent Kisimusi Emmanuel Dhlamini, who is now MDC-T head of security and intelligence; Gandhi Mudzingwa, a personal assistant to party leader Morgan Tsvangirai; Andrison Manyere, a freelance journalist; Chinoto Mukwezaramba, Regis Mujeye, Garutsa Mapfumo and Zacharia Nkomo allegedly bombed police offices on two occasions and the Norton railway line twice.

Mukoko, Broderick Takawira, Manuel Chinanzvavana, Audrey Zimbudzana, Pieta Kaseke and four others are facing charges of recruiting people for training under the National Youth Symposium Training Programme in Botswana in July.

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