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Providing
a true account of events
Zimbabwe Lawyers for Human Rights (ZLHR)
February 23, 2009
Zimbabwe Lawyers
for Human Rights (ZLHR) is aware that, sometime between 11 - 13
February 2009, at least 52 people were arrested and detained at
Mutoko Police Station facing charges of robbery. The allegations
against these detained residents of Mutoko are that they had used
force to steal property belonging to their fellow residents. ZLHR
was subsequently approached by representatives of the accused persons
with information that the alleged "robbers" had in fact
not stolen or used force to dispossess the complainants of their
property but were a group of ordinary people who had sought to recover
their property, which property had been forcefully and unlawfully
taken from them by known persons during the controversial Presidential
run-off of 27 June 2008. These accused persons were thus seeking
restitution of their property from persons who, though known to
them, had never been brought before a court of law to answer for
the criminal acts they had committed against them.
This matter has also
been variously (and falsely) reported in the state-controlled media
(print and electronic) in relation to "politically motivated
violence" wherein individuals were "seeking retribution"
for election-related violence which occurred following the March
2008 election.
On Thursday 18 February
2009 lawyers from ZLHR proceeded to Marondera Magistrates'
Court where the criminal cases against the accused persons were
to be heard. The accused persons had in fact been transferred to
Marondera Magistrates' Court from Mutoko Magistrates'
Court. It was discovered that the Magistrate at Mutoko Magistrate's
Court had in fact correctly recused (withdrawn) himself from presiding
over their case due to the undue pressure against him from members
of the Zimbabwe Republic Police (ZRP) who wanted him, at any cost
and without consideration of the facts and law, to deny accused
persons bail and ensure that they remained in custody.
At Marondera Magistrates'
Court the accused persons were brought before the State Prosecutor
for vetting of the cases/allegations against them. The Prosecutor
then came to the conclusion that the police needed to undertake
more investigations in the matter; accused persons should be released
and would be summoned once the state was ready to prosecute.
Instead of heeding the
legal advice of the Prosecutor, ZRP members at Marondera Police
Station led by one Officer Njanike, bundled the accused persons
into the bus that had brought them to Marondera from Mutoko and
detained them at Marondera Police Station where they spent the night
in unlawful detention - the prescribed statutory 48-hour period
having long since expired.
On 19 February 2009 lawyers
from ZLHR returned to Marondera Police Station to represent their
clients and take instructions from them. The lawyers were however
denied access to their clients by the Officer Commanding Law &
Order, Detective Inspector Chimimba. The Office Commanding Law and
Order failed to tell the lawyers, upon inquiry, why the police at
Marondera were continuing to detain the accused persons beyond the
prescribed 48-hour period - more so without a warrant for further
detention. The accused persons had in fact already spent seven (7)
days in police custody without any warrant for their further detention.
After having spent almost three hours at Marondera Police Station
trying to access their clients Detective Inspector Chimimba told
the lawyers that they were taking the accused persons back to Mutoko
and that the lawyers should wait until the following day for further
information about their clients.
On 20 February 2009,
lawyers proceeded to Mutoko Police Station. Again the lawyers met
with Detective Inspector Chimimba who again refused them access
to their clients citing that she was busy. After waiting for almost
an hour, at 12:48hrs, lawyers again made an attempt to see their
clients; initially they had access but then, without explanation,
their clients were rushed back into a Zupco bus which was to take
them back to Marondera. The lawyers followed their clients to Marondera
Magistrates' Court where at around 15:30hrs they were finally
able to meet with and interview their clients.
According to the 52 accused
persons the following obtains:
Sometime on the 11th
and 13th of February 2009, accused persons embarked on an initiative
wherein they sought to recover their property which had been taken
from them during the run-up to the second presidential election
of 27 June 2008. This property included chickens and goats which
the accused persons had been forced to take to "bases"
set up by fellow residents and ZANU-PF supporters. One such base
was Jembere Base in Ward 16 Mutoko, which base was led by one Temba
Nyamukondiwa and other persons known to the accused persons. At
this base those who were suspected to be supporters of the Movement
of Democratic Change candidate, Morgan Tsvangirai, were beaten and
forced to pay fines for supporting the opposition. These fines constituted
chickens and goats which were meant to be eaten by those who ran
the base. It must be noted that, despite their identities being
known, none of the persons who ran these bases, beat and stole the
now accused persons' property have been brought before the
courts to answer to criminal charges. Instead the now accused persons
have been arrested and detained for attempting to recover their
property which was forcefully and violently taken from them. The
now accused persons were arrested between 11 and 13 February while
trying to recover their property, as they moved to each home of
those who had taken their property sometime in 2008. This form of
spoliation by the accused was conducted in a peaceful manner, in
fact with many of the persons from who they sought return of the
property admitting to having taken the same and opting to return
the said property or its value. Several agreements were in fact
signed between those involved as proof of resolution of any outstanding
disputes.
In fact, there was only
one incident where there was resistance, when those who sought to
recover their property were attacked by at least 10 people wielding
spears, baton sticks and axes, with at least one person being stabbed
in the hand by a spear. After overpowering their attackers the group
went on to explain that wanted to peacefully recover their property,
following which they were given back some of the property by their
attackers.
All the property, chicken
and goats, which was recovered was immediately slaughtered, cooked
and shared among the group as a ceremony of having finally recovered
their property and reconciled.
It was on 13 February
2009 that at least 52 of the accused persons where arrested, detained
and charged with robbery.
On 20 February
2009 at Marondera Magistrates' Court the accused persons'
lawyers were told by prosecutors that they had received the usual
"instructions from above" that the accused persons were
not, under any circumstances, to be granted bail. In fact the Prosecutors
advised that if the accused persons were granted bail they were
instructed to invoke section 121 of the Criminal
Law (Codification and Reform) Act, which Act allows the State
to appeal against any granting of bail by the Magistrate, during
which time accused persons spend another 7 days in police custody.
The lawyers
representing the accused went on to file applications for bail for
all the 52 accused persons. In one of the two courts where bail
applications were made, the presiding Magistrate postponed any decision
on the application to Monday 23 February 2009. However, in the other
court the presiding Magistrate went on to pass his decision wherein
several of the accused were granted bail while others were denied
on the basis that their personal circumstances indicated they would
commit further offences if granted bail. Those who were granted
bail were however only taken back into custody after the prosecutors,
true to their orders, invoked section 121 of the Criminal (Codification
and Reform) Act. The State was not appealing because they had just
cause for doing so but simply as an unjustified means to keep the
accused persons in custody for another 7 days. In the end all 52
accused persons remained in custody. Three (3) ZANU-PF supporters
who had also been detained in relation to this matter were, surprisingly,
granted bail, and section 121 was NOT invoked. They have since gained
their freedom.
Clearly this was another
highlight of the blatant abuse of section 121 by the State and an
unjustified violation of the right to liberty and protection of
the law. Women and men aged between 22 - 77 years old remain
at Marondera Remand Prison waiting decision on their bail applications
and others awaiting a trial date.
ZLHR deplores any use
of violence to resolve disputes amongst individuals and instead
calls for the use of peaceful conflict resolution mechanisms to
resolve what are in fact long-standing and festering disputes arising
from election/politically motivated violence that was unleashed
upon thousands of Zimbabweans over the past years. In addition,
the law enforcement authorities must prosecute all such cases if
there is to be a break in the cycle of impunity and a reduction
in such "self-help" incidents. Simply arresting victims
who seek their own justice, having been failed by the State's
law enforcement institutions and systems, and denying them bail
even there they may deserve the same can never be a solution to
resolve the divisions, anger, pain and hurt that has festered in
Zimbabwe's political society over the years.
ZLHR believes that justice
must be seen to be done, wherein all those who over the past years
committed acts of violence, including beatings and torturing people
and stealing their property are made to account for their actions.
Victims of violence must be involved in such processes, as a means
of healing their pain and loss and achieving true and lasting peace.
Healing of victims and survivors cannot be achieved in abstract;
holistic victim-centered approaches which include truth-telling,
reparations and memorialization, have to be explored and properly
sequenced to achieve a lasting peace and harmony within the communities.
ZLHR therefore calls
upon the Ministry of Justice, Legal and Parliamentary Affairs and
the Ministry of Home Affairs to ensure that their law enforcement
and adjudication agents exercise their duties in a non-partisan,
lawful and transparent manner. The law should not be selectively
applied. Many Zimbabweans have lost faith in State institutions
which are relevant and critical to the restoration and maintenance
of peace, tranquility and justice. We now look to these institutions
to see whether they will restore the faith and confidence in the
justice delivery system through ensuring that justice does not see
favour or bias and that all are entitled to the protection of the
law.
Visit the ZLHR
fact
sheet
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