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Legal Monitor - Issue 169
Zimbabwe Lawyers for Human Rights (ZLHR)

November 14, 2012

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Taming 'mystery' CIO

Human rights activist Farai Maguwu has had the last laugh after the High Court ordered State intelligence officers to return his property seized at Harare International Airport, since the seizure was illegal.

The case had dragged from September last year when intelligence officers - without identifying themselves - pounced on the activist and confiscated his property.

The agents prevented Maguwu from travelling to Dublin, Ireland, for an international conference focusing on rights violations.

But at the end, it ceased being about Maguwu as the rule of law emerged the bigger winner, particularly after High Court Judge Justice Nicholas Mathonsi trashed State Security Minister Hon. Sydney Sekeramayi's attempts to legalise the Central Intelligence Organisation (CIO) as an entity that can operate above the law.

Justice Mathonsi was particularly scathing on Hon. Sekeramayi, whom he described as untruthful and unhelpful.

He was giving a final order following Justice Samuel Kudya's provisional order granted in September last year ordering the return of Maguwu's property. Defending the intelligence officers' actions, Tinei Dodo from the Attorney General's Office, representing Hon. Sekeramayi, told the court that the CIO should not be held accountable because "the Department of State Security does not operate under any statute".

To this, Justice Mathonsi said: "This argument is unfortunate indeed."

"Zimbabwe is a democratic country which subscribes to the rule of law. The applicant (Maguwu) is a citizen of Zimbabwe who is entitled to the protection of the law. He enjoys certain rights, including the right to property and free movement as enshrined in the constitution of Zimbabwe.

"If the property of an individual is to be seized such a seizure must be under the authority of the law," Justice Mathonsi said in a hard-hitting 10-page ruling.

"The Fifth Respondent (Hon. Sekeramayi) has not cited any law under which the State agents acted in this matter. The Fifth Respondent has submitted the State agents do not operate under any law. His submissions are therefore exceedingly unhelpful," he said.

The Judge then turned the screws further on the Minister for exhibiting glaring contradictions.

In an affidavit deposed in September last year opposing Justice Kudya's provisional order, Hon. Sekeramayi admitted that his agents took three blank fuel cash sale slips, bank account numbers and transaction receipts, note pads, travel insurance cover and visa application receipt. He claimed to have returned the goods to Maguwu.

He denied that the agents had taken a laptop and accessories such as the power pack and bag, a digital camera, business cards and bank cards as well as $2 000.

Justice Mathonsi said it was "not true" that the State agency had returned the items to Maguwu.

"It is also curious that the Fifth Respondent was now admitting under oath having more items belonging to the applicant when, in the letter from his legal practitioner dated 14 September 2011, he denied having taken any of the applicant's property except two reports from, and compiled by the applicant," the Judge noted.

He was not done yet.

"The Fifth Respondent has not been truthful in respect of the items that were taken from the applicant. One cannot help observe as well that all the valuable items which the applicant claims were seized from him have been denied. The Fifth Respondent has been shown to be completely unreliable on what was taken," said Justice Mathonsi, before sending the Minister to the cleaners.

"It is a principle of our law of evidence that where a witness has shown to be untruthful, as the Fifth Respondent has been demonstrably shown to be, an adverse interference has to be drawn against such a witness.

"The basis of that legal principle resides in the fact that the witness would be unreliable and the court would not know when the truth is told and when not," said Justice Mathonsi.

He tore into the Minister's definition of subversive material which the State suspected Maguwu wanted to carry to Ireland.

"We now know of course that the said documents of 'national security' other than reports, were receipts which do not commend themselves favourably as security threats," he said.

"In order to assess the reasonableness of the suspicion the court must be taken into confidence as to what exercised the mind of the agents, which, as things stand remain a mystery. What is known however is that the State agents admit taking a number of receipts, insurance policy, bank transaction slips and two reports compiled by the applicant.

"I am not persuaded that these items could be regarded as subversive," he said, adding that the manner in which the agents handled Maguwu was "not only arbitrary but also over handed".

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