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Obstruction
and harassment of Public Prosecutors, Lawyers and Judges
Zimbabwe Lawyers
for Human Rights (ZLHR)
April 10, 2003
Zimbabwe Lawyers for
Human Rights has learned with grave concern of yet another attack on a
practising lawyer by militias allegedly operating in the name of the ruling
party and with the tacit approval of the government. The Daily News of
8 April 2003 carried a story that a group of 7 people identifying themselves
as war veterans led by one Makanyisa allegedly confronted a senior public
prosecutor, Mr Levison Chikafu, at the Magistrates' Court at Mutare after
forcing their way into his private office and demanded to know why "he
had granted bail to MDC supporters" who "were supposed to have
been remanded in custody". The group is alleged to have threatened
to assault the public prosecutor for his role in the successful bail application.
This is yet another
deeply disturbing example of the extremely difficult and dangerous environment
in which the legal fraternity and indeed other human rights defenders
are operating in our country. The conduct of the war veterans, besides
being unlawful and unwarranted in a democratic society, highlights a complete
failure on their part to understand the role of the public prosecutor
in court proceedings. It is the court's function, through the presiding
magistrate, to grant bail to accused persons. The public prosecutor and
the accused's legal representative merely place the evidence before the
court to assist the court in ruling suitably on the question of bail.
The principle of separation
of powers requires that no organ of the state interfere with the functions
the court and the public prosecutor, who in any event in terms of the
law may be subjected to a judicial enquiry if procedural irregularities
arise. Official or unofficial extensions of the executive such as the
militias have no right to confront judicial officers to question them
on the exercise of their official functions as part of the Judiciary.
The alleged attack on Mr Levison Chikafu by the militia is therefore condemned
in the strongest possible terms by Zimbabwe Lawyers for Human Rights.
Sadly the attack on
Mr Chikafu is not the only one of such nature on members of the legal
fraternity this year by people or organs identifying themselves with the
State. Gabriel Shumba, a human rights lawyer, was arbitrarily arrested,
detained and allegedly tortured by state agents in January 2003 and is
now living in exile. Press reports suggest that he has received further
threats from state agents. Advocate Selemani was arrested and/or obstructed
from doing his job as a lawyer representing Hon Member of Parliament Job
Sikhala. Jacob Mafume, a human rights lawyer, was also obstructed and
denied access to Shumba during the time of his detention by the Law and
Order section of Harare Central police station.
On 14 February 2003
our members, Perpetua Dube, Ndabezinhle Mazibuko, Thembelani Mkhwananzi
and Kucaca Phulu, practising in Bulawayo and deployed on official business,
were refused permission to access their detained clients at Bulawayo Central
police station. They complained that the police officers, including the
officer in charge, were generally obstructive and verbally and physically
abusive. They were denied access into the police station and were physically
pushed out of the police station by a group of about 20 riot policemen
who shouted in the process that the police station belonged to the police
and not to lawyers.
In March 2003 Gugulethu
Moyo, a legal representative for Associated Newspapers of Zimbabwe, was
assaulted at a police station, and thereafter arrested and detained whilst
attempting to represent her client. Alec Muchadehama, another human rights
lawyer, has been variously obstructed by police whilst trying to represent
his clients in human rights-related matters at a number of police stations
in Harare. The obstruction varied from denial of access to clients to
being made to wait for long hours before seeing clients or being given
audience by senior policemen who make decisions on such important issues
as the detention and charging of accused persons. This is apart from the
assault to which he was subjected when he attended at Glen View police
station together with Gugulethu Moyo.
Riot police chased
Andrew Makoni, a human rights lawyer, away from Glen Norah police station
when he attended to represent detained clients on 18 March 2003. He was
falsely accused of aiding and abetting the commission of offences by MDC
supporters.
On 20 March 2003 a
Mutare lawyer, Chris Ndhlovu, drove to the rural Marange police station
to attend his detained client, the Hon MP Giles Mutseyekwa, but was denied
access to him by the officer in charge. The lawyer intended to take instructions
and to give him food and medication for a chronic condition. He and another
Mutare lawyer, Trust Maanda, were denied further access to about 17 other
clients by the police in Manicaland who refused to cooperate with the
lawyers about the places where various clients were detained after the
mass stay away.
On 21 March 2003 Obey
Matizanadzo, a Harare lawyer, and Mr Muchineripi, a Chinhoyi lawyer, were
denied access by CID Chinhoyi from seeing their detained clients and were
made to wait for long hours before being attended to by the police. One
of the accused persons is still languishing in jail after bail was refused
based on a statement that was extracted from him during the time that
he was denied access to his lawyer in violation of his constitutional
rights.
On 31 March 2003 Obey
Matizanadzo was again denied access to see his clients by Chinhoyi police
despite spending the whole day at the police station where his clients
were detained. During this period the police were interrogating his clients
and threatening to stop the interrogation and detain them indefinitely
if they insisted on their lawyer being present in the room where the interrogation
was taking place.
ZLHR draws the government's
attention to the following instruments that clearly spell out its obligations
and responsibilities towards ensuring that the Judiciary remains free
from political or other interference:
- United Nations Basic Principles on the Independence of the Judiciary
(1985), Article 1, which states: "The independence of the judiciary
shall be guaranteed by the state and enshrined in the Constitution or
the law of the country. It is the duty of governmental or other institutions
to respect and observe the independence of the judiciary."
- United Nations Basic Principles on the Role of Lawyers (1990), Principle
17 which, states: "Where the security of lawyers is threatened
as a result of discharging their function they shall be adequately safeguarded
by the authorities"
- The Constitution of Zimbabwe, Section 79B, which states: "In
the exercise of judicial authority a member of the judiciary shall not
be subject the direction or control of any person or authority…"
ZLHR is also mindful
of the report of the Special Rapporteur on the independence of the judges
and lawyers, Dato' Param Cumaraswammy, submitted to the United Nations
Human Rights Commission dated 10
January 2003 which has a recommendation as follows:
"With regard
to Zimbabwe, the Special Rapporteur once again urges the Commission
to consider and address appropriately its concerns about the deterioration
in that country, inter alia with regard to the independence of the judiciary
and its impact on the rule of law."
ZLHR reiterates its
grave concern at the upsurge in threats, harassment and intimidation of
prosecutors, lawyers, magistrates and judges, particularly those handling
human rights-related cases, and calls upon the government to comply with
its obligations and responsibilities to guarantee the independence of
the Judiciary and to ensure that adequate protection is offered to members
of the legal fraternity in the exercise of their judicial functions. In
particular all reports of threats, intimidation and harassment of the
lawyers and public prosecutors must be promptly investigated and perpetrators
prosecuted.
Visit the ZLHR fact
sheet
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