Back to Index

This article participates on the following special index pages:

Abductees Daily Update - 08/01/09
Zimbabwe Lawyers for Human Rights (ZLHR)
January 08, 2009

Proceedings in State v Dhlamini & 6 Others resume at the Magistrates' Court.

In relation to the complaints of abduction/enforced disappearance and torture, cruel, inhuman and degrading treatment and punishment which were placed on record the previous day, Magistrate Olivia Mariga orders the Attorney-General's office to carry out an investigation and report back to the Magistrates' Court with its findings by 23 January 2009.

Defence lawyers make the first application for refusal of remand on the basis that all the persons before the court in this matter are the victims of crime. They were subjected to abduction/kidnapping (a crime under national law), held in secret detention centres and were denied their fundamental right to protection of the law. This is also known as enforced disappearance, which is a crime and is outlawed under international law. As such, and because there was involvement and complicity amongst state security agents (who admitted responsibility for the abductions through the affidavit of the Minister of State Security, Didymus Mutasa), police, and others in the abductions and detentions, they cannot be said to have been lawfully arrested, nor lawfully detained, nor properly brought before the court. Further, the perpetrators of such crimes, although known to the police, have not been arrested or prosecuted; instead the complainants have become the accused, which is unacceptable. All of the individuals were subjected to varying levels of torture, and cruel, inhuman and degrading treatment and punishment during the course of their abductions and detention, which is absolutely prohibited. Such torture has subsequently been medically confirmed in uncontroverted evidence before the court and the individuals' personal testimonies, which was produced by way of affidavits. Despite reports to the police (which they confirmed in writing through Chief Superintendent Nzombe) they were investigating as cases of kidnapping), provision of the names of some of the perpetrators, and various court orders for investigation and their release, the abductees were never protected and the perpetrators have not been prosecuted. As such, to place the accused persons on remand would be a grave violation of justice. It is further argued that, as enforced disappearance is a continuing crime, once the state decides to remand the individuals the violation will continue and the court will become a further accomplice to the perpetration of criminal offences.

The Court is urged to make a strong statement by refusing to place the individuals on remand, which will tell perpetrators that such actions are unacceptable and that the court cannot be abused to perpetuate illegalities, or else no person in Zimbabwe will be safe. The court should order the state to deal with its agents who unlawfully held and continue to hold these and other individuals and ensure that criminal proceedings are initiated against them. Alec Muchadehama argues that, to fail to do so and to place them on remand, will be as if the magistrate is saying, "I ignore how these people were taken. It is acceptable to kidnap - even kill - and the court will continue to deal with the matters. I do not care about the Constitution. I do not care what the United Nations says. I do not care what the Robben Island Guidelines for the Elimination of Torture say. I choose to be blind to this. I will be saying to the perpetrators - Well done! Do it again! Bring people before me at whatever time you wish and I will remand them!"

Magistrate Mariga advises the defence that she wishes to hear the second application for refusal of remand on the basis that there is no reasonable suspicion of the commission of offences, and she will then make a ruling in respect of both applications.

Defence lawyers proceed with the second application. They argue that none of the essential elements of the crime have been met. They further argue that the crime involves the toppling of the government and, at the time at which the offences were allegedly committed, there was no substantive government in place in Zimbabwe. They question why the accused persons would want to bomb the very police stations which their political party is insisting they should control in ongoing negotiations relating to the formation of an inclusive government. The state has failed to provide sufficient facts, evidence, detailed charges and named witnesses they will be calling, and there can be no doubt that the charges as outlined in the Form 242 are unsustainable. Further, the police have relied on enforced disappearance and torture to extract questionable "confessions", which the accused denied at the very first possible opportunity after they felt their lives were safe enough to do so. Warned and cautioned statements were recorded in the absence of their lawyers, despite the severity of the charges, and the state has not produced any evidence of video confessions, search warrants which led to ammunition and other materials being found, or explained why the searches, if carried out, were done so in the absence of the accused persons and their lawyers. Evidence is led from Chris Dhlamini, Gandi Mudzingwa and Andrison Manyere to bolster the arguments. The magistrate is urged to refuse to place the individuals on remand as this is a purely political matter; politics should be left to politicians, and legal issues to the court, and innocent persons should not be abused by any person or institution for political ends.

The matter will continue the following day, where the state will respond to the two applications.

Visit the ZLHR fact sheet

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP