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Jestina Mukoko's case in Supreme Court on Thursday - Peace Watch
Veritas
June 24, 2009

Jestina Mukoko Torture Case in Supreme Court Thursday at 9.30

On Thursday 25th June, the Supreme Court will hear the case in which Jestina Mukoko asks the court to declare that the conduct of the State in abducting, detaining and torturing her violated the Constitution, and accordingly to stop the criminal prosecution against her permanently. This being a constitutional matter, there will be five judges [Chief Justice Chidyausiku, Deputy Chief Justice Malaba, and Judges of Appeal Sandura, Cheda and Ziyambi]. Jestina’s case will be argued by distinguished South African advocate, Jeremy Gauntlett. In so important a case the court will probably reserve judgment after hearing argument from the lawyers for both sides. It may even be up to two to three months before its decision is handed down.

Case of First 4 Abductees Referred to Supreme Court

In the High Court on Monday Justice Uchena granted the defence request to refer to the Supreme Court constitutional questions arising in the trial of Concillia Chinanzvavana, Fidelis Chiramba, Violet Mupfuranhewe and Collen Mutemagau. [These are four of the MDC activists who were abducted and “disappeared” last October. It was discovered just before Christmas that they had been held by State agents, and after spending months in prison they were eventually given bail. All four told their lawyers that while they were held incommunicado they were tortured. Two weeks ago they were brought to trial on charges of recruiting for training in insurgency.] The criminal trial is indefinitely postponed pending the Supreme Court’s decision. The constitutional questions raised are whether the abductees’ abduction and kidnapping, physical treatment during detention and denial of access to legal practitioners, violated their constitutional rights – and “whether as victims of enforced disappearances they can lawfully be prosecuted … [whether they] can be compelled to go to trial where their appearance at court was facilitated by a criminal act of kidnapping or abduction authorised or sanctioned by the State or officials of the State”. The Supreme Court is unlikely to hear this case before they make their decision in the Jestina Mukoko case, as the circumstances in both cases are so similar.

Other Abductee Trials Likely to be Postponed

The Supreme Court’s decision in the Mukoko case is likely to have a bearing not only on the Concillia et al case, which has already been referred to the Supreme Court, but also on the cases of the other abductees – all of whom have made similar complaints that their constitutional rights were violated by illegal abduction, disappearance, detention, mistreatment during detention, etc. If the Supreme Court stops the prosecution of Jestina Mukoko, it is to be expected that the prosecution of the other abductees, too, will be stopped. But an early decision in Jestina Mukoko’s case is unlikely. Therefore, it is probable that the defence lawyers in the “Bomber Group” trial due on the 29th June and the second “Recruiter Group” trial due on 20th July, will seek postponements until the Supreme Court’s decision in the Jestina Mukoko case is out.

Magistrate Refers Bail Blocking to Supreme Court

Section 121 of the Criminal Procedure and Evidence Act is the section allowing the Attorney-General to block a court decision granting bail for 7 days by merely indicating the State’s intention to appeal against the decision. It has been used repeatedly in many recent so-called “political cases”, e.g. the abductees and Roy Bennett. In the latest example, when MDC-T Director-General Toendepi Shonhe was accused of perjury and granted bail by a magistrate, his lawyer Alec Muchadehama asked the magistrate to refer to the Supreme Court the question whether section 121 breaches the protection of the law guarantee in the Constitution. This is an important case, as the Attorney-General’s use of this section has been much criticised, with human rights lawyers saying it has been abused by the AG’s office as a weapon to oppress people they perceive to be unsuitable for bail for extra-judicial reasons

WOZA demonstrations violently broken up

Peaceful Women of Zimbabwe Arise [WOZA] marches in Bulawayo and Harare last week were forcibly broken up by police. Participants were beaten and kicked and verbally abused, and those arrested were violently thrown into trucks. One of the marches was dispersed close to the venue of a press conference held at the conclusion of the visit to Zimbabwe by an Amnesty International team headed by the AI secretary-general Irene Khan [see below]. In Harare those arrested were denied medical treatment by police despite being in obvious pain after their beatings. The detained marchers – 7 in Bulawayo and 4 in Harare – were eventually released on bail despite State resistance to bail being granted. Three journalists arrested along with the Harare marchers were released without charge when it was realised that one of them was from the State-owned Herald.

Amnesty International Visit

At the end of her visit to Zimbabwe Amnesty International secretary-general Irene Khan described the human rights situation in Zimbabwe as precarious and stressed the impunity issue: “Impunity remains unaddressed,” she said. “The culture of impunity remains deeply entrenched at every level of the State. No major investigation or prosecution has been brought against those responsible for State-sponsored political violence.” Amnesty was “convinced that without justice there can be no real healing in a country deeply polarized by decades of political violence.” The Amnesty report drew special attention to the arrests of political and human rights activists, the lawyers defending them and the journalists covering their cases.

Abductees Defence Lawyer in Court

Human rights lawyer Alec Muchadehama appeared at Harare magistrates court on the 17th June to answer a summons on a charge of defeating or obstructing the course of justice connected with his efforts to get three of the political abductees out on bail. In what the defence described as an unprecedented move, the prosecutor said the trial would not be proceeding and walked out of the courtroom after refusing to have the magistrate called into court for the summons to be properly dismissed and for the State witnesses to be given the court’s permission to leave.

Journalists Covering Abductees Story in Court

The Zimbabwe Independent’s editor Vincent Kahiya, news editor Constantine Chimakure and Mike Curling, representing the paper’s owners, are accused of publishing a false statement in coverage of the abductees story. Defence lawyer Innocent Chagonda presented an impressive argument in support of a request to the magistrate to refer the case to the Supreme Court for a decision on whether Criminal Law Code section 31, which defines the offence, should be struck down for inconsistency with the Constitution’s guarantee of freedom of expression [and also on the propriety of the Attorney-General's Office being both complainant and prosecutor in the case]. The case was then adjourned to the 9th July. [Note: The magistrate is obliged by the Constitution to refer the case to the Supreme Court unless the prosecutor can persuade him that the defence request is frivolous or vexatious.] Meanwhile, the three accused are on bail.

Net Beginning to Close in on Zimbabwean Torturers?

Police officers and State security agents responsible for torture in Zimbabwe may have escaped investigation and prosecution so far in this country, but they could nevertheless face arrest and prosecution in South Africa for crimes against humanity. This has become a possibillity following the handing over to the South African National Prosecuting Authority of a dossier containing detailed evidence of acts of torture committed by 18 Zimbabwean officials. In presenting the dossier the Southern African Litigation Centre has requested action against these officials under a South African Act of Parliament that gives effect to South Africa’s membership of the international treaty ["the Rome Statute"] establishing the International Criminal Court. If the South African authorities decide that these individuals have a case to answer, warrants could be issued for them to be arrested as soon as they set foot on South African soil. They would then face crimes against humanity charges in a South African court. [The Act allows a South African court to exercise jurisdiction over a person accused of a crime against humanity if he or she “is present in the territory of the Republic”, even if the crime was committed elsewhere.] Torture is one of the crimes against humanity listed in the Rome Statute, which defines it as follows: "‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused."

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