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Monitor - Issue 169
Zimbabwe Lawyers for Human Rights (ZLHR)
November 14, 2012
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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
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.
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."
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
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.
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
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.
said it was "not true" that the State agency had returned
the items to Maguwu.
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
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.
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
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.
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.
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.
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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