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Jestina Mukoko versus The Attorney-General judgment
Supreme Court of Zimbabwe
March 20, 2012

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SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA,
ZIYAMBI JA & GARWE JA

HARARE, JUNE 25, 2009 & MARCH 20, 2012

J Gauntlett SC, with him Mrs B Mtetwa, for the applicant
Mrs F Maxwell, for the respondent

MALABA DCJ:

Introduction

This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge. Jestina Mukoko (hereinafter referred to as ("the applicant") appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No. 8801-5/08. She was charged with the offence of contravening s 24(a) of the Criminal Law (Codification and Reform) Act [Cap. 9:23] (hereinafter referred to as "the Act"). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons "recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe".

The applicant alleged in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court ("the Court").

Two grounds were used to justify the request. The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention prior to being brought to court on the charge constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under s 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by s 15(1) of the Constitution. The argument was that the uncontested behaviour by State security agents in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody. The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

The second ground was that the decisions made by the public prosecutor to charge the applicant with the criminal offence and to bring the prosecution proceedings were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment. It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence. The assumption was that s 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings by public officials responsible for the initiation and conduct of criminal prosecution and judicial officers, of information or evidence of the crime obtained from an accused person or any third party by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant or a third party by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful. It also engaged the responsibility of the State in the violation of s 13(1) of the Constitution. The effect of the argument was that the decision to charge the applicant with the criminal offence and the institution of the prosecution of it was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorised by s 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination. The relief sought by the applicant was an order of permanent stay of the criminal prosecution.

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