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Statement on Mukoko Supreme Court ruling
Zimbabwe Lawyers for Human Rights (ZLHR)
October 01, 2009

ZLHR naturally welcomes the Order granted by the Supreme Court on Monday and looks forward to reading the full judgment

It is a landmark judgment in that the Judiciary has put prosecutorial authorities and all perpetrators and potential perpetrators of rights violations on notice: the violation of an individual's rights will not be tolerated by the courts, and nobody is above the law - including state institutions and actors

Where rights have been gravely violated - as was done in this matter - this was the only possible outcome which could have been expected from the courts. What is regrettable is that the matter had to go this far. We recognize that there were also some judicial officers in lower courts who tried to protect Jestina's rights, but had their orders flagrantly defied. This practice must be condemned and must come to an end, both to protect individuals who have had their rights violated, and in order to restore the dignity of the courts and public confidence in the justice delivery system

ZLHR hopes the SC ruling will act to provide confidence to the lower courts to act in a similar manner to ensure such violations do not occur ever again, and contribute towards putting an end to the endemic culture of impunity in our society

ZLHR believes that this matter should never have had to go this far. Apart from the failures which have already been outlined, the main reason for the prolonged suffering of the victim in this matter was essentially due to the failure of the investigating authorities and the prosecuting authorities to perform their constitutional functions

There are professional and ethical rules of conduct, both nationally and in terms of the AU Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, which apply to any prosecutorial office, including the Office of the Attorney General of Zimbabwe.

• Prosecutors have a duty to be aware of - and apply - constitutional and statutory protections for suspects and victims.
• Prosecutors also have a duty to be aware of - and ensure - the human rights and fundamental freedoms of suspects and victims.
• Prosecutors have a duty to perform their functions in accordance with the law, uphold the dignity of those before the courts, exhibit impartiality, and avoid any kind of discrimination in order to protect the public interest

We are of the reasoned belief that the prosecutorial authorities in this matter failed to perform their duties, and that they bear, and must accept responsibility for the manner in which this case was handled.

In any democratic society, such untenable failures would lead to the head of the affected institution - in this case the Attorney General - resigning his or her position. At the very least, we would expect, in a democratic society, to see such public official publicly accepting responsibility for the professional and ethical failures of those who prosecute on his or her behalf.

Law officers should be disciplined, and any similar cases should immediately be reviewed and charges withdrawn.

Immediate and concerted action should also be taken to investigate and prosecute the perpetrators of the violations. This would also assist in restoring public confidence in the justice delivery system

ZLHR will continue to monitor the situation and see whether such actions will be forthcoming, as we believe that this has a direct bearing on whether key state institutions are complying with the Constitution of Zimbabwe and the Interparty Political Agreement to restore the Rule of Law and security of persons, which in turn has implications on regional and international confidence in the democratisation of our country, through its inclusive transitional government.

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