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This article participates on the following special index pages:
Index of articles on enforced disappearances in Zimbabwe
Truth, justice, reconciliation and national healing - Index of articles
Peace
and justice and the rule of law – Peace Watch 24/2009
Veritas
January 24, 2009
Peace Watch
has been chronicling the story of the enforced disappearances and
subsequent developments for several weeks now. We have done this
not only because the victims include three workers for peace in
Zimbabwe, but also because it is axiomatic that without justice
and due observance of the rule of law there can be no true and lasting
peace in our country.
Jestina
Mukoko – taken to hospital in leg irons
Last week the
Chief Justice, after he had seen a doctor’s affidavit stressing
the inadequacy of the prison hospital and the necessity for getting
Jestina medical attention in a hospital with proper facilities,
directed that she should receive “appropriate medical attention
as a matter of urgency”. Over a week later Jestina was taken
in leg irons and under armed escort to the Avenues Clinic. There
she was examined by doctors and, still in leg irons, was sent for
X-rays and an ultra-sound scan to assess her injuries. [Jestina
has testified that she had been subjected to torture]. She was put
on a drip and admitted for treatment. But the escorting prison warders
refused to allow her to remain and against her will, still on the
drip, took her back to Chikurubi. The doctors refused to sign her
discharge papers as she was removed against their professional medical
advice. In Chikurubi Jestina is being attended to by a doctor brought
in by the prison service. She was at least moved to a makeshift
side-ward [a matron’s office] in the males-only prison hospital.
Initially, she was kept in leg-irons and even expected to sleep
with them in place.
News
of the other Zimbabwe Peace Project staff
Broderick Takawira:
Broderick is still in solitary confinement at Chikurubi Maximum
Security Prison. At his last appearance in the magistrates’
court, the magistrate granted his lawyers’ application for
the constitutional aspects of his case to be referred to the Supreme
Court. This referral parallels the referral granted a few days earlier
in Jestina’s case [see below], and the Supreme Court is likely
to hear the two cases together.
Pascal Gonzo:
Although both a High Court Judge and a magistrate ordered Pascal’s
release before the end of last year, the State blocked his release
and he continued in solitary confinement in Chikurubi Maximum Security
prison. Another application for his release will be heard by a High
Court judge early next week.
One
abductee released
On 23 January
Tawanda Bvumo was released from Chikurubi two days after a Judge
ordered his release, saying that if the State wish to press charges
against him they should do so by way of summons. He had been in
State custody for 84 days, since the end of October.
No date
yet for Supreme Court hearing for Jestina Mukoko
Jestina Mukoko’s
case has been referred to the Supreme Court by the magistrate’s
court at her lawyers’ request, as they are arguing that the
State cannot prosecute her until the numerous infringements of her
constitutional rights have been properly redressed – unlawful
deprivation of liberty, torture and inhuman and degrading treatment
while detained, denial of pre-trial rights [no reason given for
arrest, no access to lawyers or relatives], denial of protection
of the law [the report of her abduction not investigated by police,
and her abductors not prosecuted]. As this is a constitutional case,
it will be heard by five Supreme Court judges. The hearing will
be open to the public, but the date has still not been fixed although
the Chief Justice has already ruled the case is urgent.
Other
forthcoming court hearings
Monday 26 January:
Chris Dhlamini, Gandi Mudzingwa, Mapfumo Garutsa, Andrison Manyere,
Regis Mujeyi, Zacharia Nkomo and Chinoto Zulu [the "Dhlamini
group"], who have been remanded in custody on charges of insurgency,
banditry, sabotage or terrorism [bombing of police station and railway
line], will appear at the magistrates court for further remand.
[They were remanded on the 9th, and because an accused person cannot
be remanded for more than 14 days at a time, their remand hearing
should have occurred on Friday 23rd January; but they were not brought
to court by the prison authorities, so the proceedings were postponed.]
The Attorney-General’s office is also due to report back to
the court on its investigation into the group’s complaints
of torture while in State custody [this report back is already overdue].
There is also an application pending in the High Court to set aside
the charges and release them, but no date has yet been set for this.
Wednesday 28
January: Concillia Chinanzvavana, Emmanuel Chinanzvavana, Fidelis
Chiramba, Pieta Kaseke, Violet Mupfuranhehwe and Collen Mutemagau
[their little boy Nigel was eventually released] will appear in
the magistrates court for further remand proceedings.
Friday 30 January:
Jestina Mukoko will appear at the magistrates court for continuation
of her postponed remand proceedings. Further postponement is likely,
depending on developments in the Supreme Court on her complaint
of violations of her constitutional rights [see above].
Background
to these events
It was only
a few months ago that the horrendous phenomenon of enforced disappearance
became widespread, starting with the abduction and disappearance
of 14 MDC-T office-bearers and members in Mashonaland West at the
beginning of November and continuing until well into December with
the abduction of Zimbabwe
Peace Project [ZPP] director Jestina Mukoko and Broderick Takawira
and Pascal Gonzo [ZPP staff members] and several others [see Peace
Watch of 28th December for lists of names and Peace Watch of 9th
December for commentary on enforced disappearance]. Because of the
number of cases [32] and the high profile of the ZPP staff these
disappearances have raised huge concern in Zimbabwe and world wide.
Zimbabwe
Lawyers for Human Rights [ZLHR] have been working almost day
and night to find out what happened [see Peace Watch of 16th January]
and taking action to protect their safely and legal rights.
In other countries,
notably Latin American countries, where enforced disappearances
have taken place they have been a tool of a repressive government
fighting against activists promoting more freedom of political choice
and working against state violence. In Zimbabwe the recent spate
of disappearances have taken place at a time when critical negotiations
between political parties are taking place. On 19th December Mr
Tsvangirai stated that MDC-T would not continue with the negotiations
for an inclusive government unless all the “disappeared”
civil society and MDC-T cadres were released or charged in a court
of law by January 1st 2009.
On 23rd December
some of the 32 persons listed by ZLHR as having disappeared were
located by lawyers looking for them. On the 24th December, 9 of
them were produced in the magistrates court, and at 9 p.m. a High
Court judge granted an order for (1) the release of Jestina Mukoko,
Broderick Takawira and the Dhlamini group to the Avenues Clinic
for medical examination and treatment under police guard, and (2)
the outright release of the other 23 on the ZLHR list [none of which
has been done].
Key
Developments Since 24 December
Note: for full
day by day details of events please see ZLHR reports available from
kumbi@zlhr.org.zw
On Christmas
Day: The High Court judge’s order to take Jestina Mukoko and
others alleging torture to the Avenues Clinic for medical treatment
was defied and all were removed to Chikurubi Maximum Security Prison.
Also flouted was the judge's order for the release of the other
23 persons listed as disappeared.
On 29 December:
A further 9 of the disappeared were produced and brought to the
magistrates court to be placed on remand [the Dhlamini group plus
Pascal Gonzo and Tawanda Bvumo].
[This still
left 14 on the ZLHR list unaccounted for – but believed to
be in State custody - later developments regarding these 14 were
covered in Peace Watch of 16 January].
On 30 December:
Lawyers again asked for the abductees who had made affidavits of
torture to be transferred to the Avenues Clinic. In spite of the
public prosecutor’s resistance, the magistrate eventually
ordered medical examination by doctors of their own choice, but
that these were to be done in prison. The abductees were examined
by doctors of their own choice at Chikurubi Prison Hospital who
noted evidence of torture.
On 31 December:
Lawyers lodged an urgent High Court application on behalf of Jestina
Mukoko for an order compelling the police to disclose the identities
of those responsible for her abduction and detention. Minister of
State Security Didymus Mutasa filed an affidavit confirming State
security involvement in her seizure and detention, but claimed that
divulging the information sought would prejudice national security.
On 2 January:
A High Court judge upheld the Minister’s objection to disclosure
of information about responsibility for Jestina Mukoko’s abduction
and detention, but ordered that she be taken to Avenues Clinic for
examination.
On 15 January:
It was discovered that the State is holding three of the original
abductees in “police protective custody” as State witnesses.
On 20 January:
Lawyers succeeded in getting Jestina’s case referred to the
Supreme Court for an order to grant redress for numerous breaches
of her constitutional rights by the State.
The cases are
still continuing: Basically, the State has continued to press for
all 18 abductees so far brought to court to be placed on remand
on various criminal charges related to insurgency, banditry, sabotage
or terrorism [see Peace Watch of 16 January]. The defence lawyers
have strenuously resisted these applications, arguing that the grave
infringements of the abductees’ constitutional rights [abduction,
secret detention, torture, refusal to investigate and prosecute
the abductors, etc.] mean they are not properly brought before the
court [the State has “dirty hands”] and they should
be released. In addition they have argued that the State’s
allegations do not establish a reasonable suspicion of commission
of the offences charged.
For dates of
forthcoming hearings see above.
Issues of Great
Concern to the Public
- Constant
delays have thwarted the delivery of justice – Judges and
magistrates not making themselves available or turning up hours
late, police or prison officials not producing detainees in court,
court orders being ignored,and delays in typing up of court records
needed for cases to be taken to a higher court, have resulted
in months of delays since the “disappearances”.
- The State’s
resistance to divulging of information about abductees' detention
has hampered proper investigation, could be a cover up for illegalities
and torture on the part of State agents, and will foster an ongoing
culture of impunity.
- The frustration
of lawyers' attempts to get abductees proper medical treatment
is a gross denial of prisoners rights and a violation of our Constitution
and international conventions and could be a cover up when there
are allegations of torture.
Zimbabwe’s
Legal
Resources Foundation Trustees have issued a statement on the
general departure from the rule of law and the State's disregard
of court orders [available from pa@lrf.co.zw]
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