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Wheels of justice slow for peace workers and activists - Peace Watch
Veritas
August 24, 2009

Peace Watch has been following the cases of the Zimbabwe Peace Project [ZPP] staff – Jestina Mukoko, Brodrick Takawira, and Pascal Gonzo – who were abducted by State agents in early December. Their “enforced disappearances” were similar to those of a number of MDC activists a month earlier. The police said they had no information about them, were treating their disappearance as kidnapping and were ordered by a High Court judge to search for them, but eventually produced them at the end of December together with the other abductees. It turned out they had been in the hands of State agents all along, and all the abductees alleged they had been tortured and/or subjected to other inhuman and degrading treatment during their illegal detention. The State continued to detain them on various charges in Chikurubi maximum security prison, in poor conditions, with many of them in solitary confinement. One ZPP worker, Pascal Gonzo, was released without charge in early February, but it took months of legal battles to get Jestina Mukoko, Brodrick Takawira and the other abductees access to medical treatment – many of them had to be hospitalised – and eventually get all of them them out on bail.

It was not until the 4th May that the State eventually served the formal legal documents setting out the State’s charges against Jestina Mukoko, Brodrick Takawira and fourteen other abductees and setting dates for their trials in the High Court. There are three separate cases. Two groups [the second group includes Jestina and Brodrick] are charged with recruiting MDC-T party youths to undergo military training in Botswana for the purpose of committing acts of insurgency, banditry, sabotage or terrorism in Zimbabwe. These two groups are being tried separately, as the State claims the witnesses and circumstances are different for each group. The third case involves a group of seven abductees charged with sabotage by causing explosions at police premises and at the Manyame River Bridge in August and November 2008. [For list of names see below.]

Abductees High Court Trials Indefinitely Postponed

All three trials have been postponed indefinitely pending the Supreme Court’s decisions in the constitutional cases requesting the stopping of the trials [see below]. Meanwhile Jestina, Brodrick and the others are still restricted by bail conditions requiring them to report once weekly to police and limiting their ability to travel [the authorities still hold their passports]. After the ordeals that they have all suffered many of them would just like to get away for a holiday or where they can relax and feel safe, but they are still subject to restraint, fear and anxiety about the final outcome.

Judgement still Pending on Jestina Mukoko’s Appeal to Supreme Court

In January Jestina successfully applied to for her case to be referred to the Supreme Court on the ground that her constitutional rights had been comprehensively breached by her abduction, detention, torture and other inhuman and degrading treatment, denial of access to her lawyers and medical treatment. The Supreme Court was also requested to order that her trial be permanently stayed on account of those infrintgements of her constitutional rights. The Supreme Court hearing was on the 25th June, and the court reserved judgment.

Other Appeals to Supreme Court

Similar applications for Supreme Court constitutional hearings were granted by a magistrate for ZPP’s Brodrick Takawira and another abductee, Audrey Zimbudzana, in February. More recently High Court judges have granted similar applications made by all the other abductees as they came up for trial in the High Court on 8th June, 29th June and 20th July. This means that all the abductees now have cases before the Supreme Court asking the court to stop the trials because they were abducted, tortured, etc. These cases are unlikely to come up for hearing until the Supreme Court has handed down its decision in Jestina Mukoko’s case – because her case is a test case for all of the abductees.

State Ordered to Produce Jestina’s “Confession” Video

The State, when it served the indictment papers on Jestina [4th May], said it was basing its case on video footage containing her confession, together with witness statements and other documents. The prosecutor undertook to provide these items to the defence, as legally bound to do. When the case came to trial on 20th July, defence lawyer Beatrice Mtetwa told the court that the items had not been supplied despite numerous written requests to the Attorney-General’s Office. The judge ordered the State to provide the items to the defence team, but the AG’s office has still not complied with the Judge’s order.

Abductees’ Civil Cases Claiming Compensation

Jestina Mukoko has brought a civil case against the State [and also against several named State security agents and police officers in their personal capacities], in which she claims US$220 000 compensation for illegal abduction, detention, subjection to torture and inhuman and degrading treatment, etc. 17 other abductees are also suing the State and individuals, each claiming US$1.2 million. [Note: The individual defendants named in these civil cases have so far enjoyed effective immunity from criminal proceedings – despite complaints laid on behalf of the abductees, no charges have been brought against those responsible for their abduction and ill-treatment and as far as is known there has been no police investigation. But that immunity does not affect these civil compensation claims. Nor can the civil claims be defeated by the granting of a Presidential pardon – because pardons affect criminal prosecutions only.]

Spill-Over Effect: Other Prosecutions Arising from the Abductees Cases

For over nine months lawyers have fought for the abductees rights. One of their principal lawyers has been harassed and hauled to court three times to face criminal charges for his efforts to get three of the abductees released on bail. A journalist reporting on the case has been prosecuted, together with his editor and the paper’s owner. A High Court official has been charged with abuse of office for processing bail release papers. A senior MDC-T official who took court action out of concern for the safety of three vanished party activists found himself being prosecuted for perjury.

Three Cases Brought against Abductees’ Lawyer

The State’s third attempt to prosecute human rights lawyer Alec Muchadehama was dismissed by a magistrate on 28th July as he had not been properly summonsed, the offence charged was not clearly identified and the prosecution had failed to provide the particulars of the charge as requested by the defence. The State’s two previous attempts to prosecute Mr Muchadehama also fizzled out. In mid May he was arrested and subjected to a night in police cells before being taken to court and remanded on bail a charge of interfering with the administration of justice. A fortnight later a magistrate discharged him on the ground that there was no reasonable suspicion that an offence had been committed [see Peace Watch of 2nd June]. In June Mr Muchadehama was served with another summons, but it was withdrawn when he arrived at court [see Peace Watch of 24th June]. This is a clear case of harassment of a human rights defender. He has been trailed by State agents, arrested, detained overnight in police cells, twice had summons served on him in the middle of important High Court cases, been forced to appear in the dock in court and had his work disrupted – all of which has been extremely stressful for him and his wife and family.

Case Against Zimbabwe Independent Journalists and Owners

Vincent Kahiya, the Zimbabwe Independent’s editor, and Constantine Chimakure, the news editor, were arrested and detained overnight in police cells before being charged, together with Mike Curling representing the paper’s owners, with publishing falsehoods in an article reporting charges brought against the abductees. On 30th July the magistrate referred the case to the Supreme Court for a ruling on whether the section of the law under which they were charged [section 31(1)(a) of the Criminal Law Code] infringes the constitutional right to freedom of expression. Their trial has been deferred to 24th November, by which time the Supreme Court may have reached its decision – although the case has not even been heard yet. Meantime the two journalists are still on bail.

Case against Court Official

A judge’s clerk who processed bail release papers for three of the abductees [allegedly prematurely, although there was a court order for her to do so], was arrested, placed on remand and held in prison for several days, although she was breastfeeding her infant, before being released on bail. She remains on bail, reporting twice weekly to police. No date has been fixed for her return to court. This is not the first time a court official has been arrested in a “political” case – and Zimbabwe Lawyers for Human Rights has issued a statement saying that “the practice of executive persecution of judicial officers who are exercising their professional functions in terms of the law deserves the strongest condemnation and should cease forthwith”.

Case against MDC-T Director-General

In early June MDC-T Director-General Toendepi Shonhe signed an affidavit stating that, on the information he had been given, he believed that 3 MDC activists had been re-abducted. They were the three MDC-T members who had been among those originally abducted and later turned up in police detention as “unwilling” state witnesses [they signed affidavits that they had been tortured]. In fact they had been picked up by CID details, including a person they believed to have been involved in their previous abduction and torture, and taken against their will to the AG’s office in Harare, where they alleged they had been warned ot to change their evidence in the upcoming trial against the other abductees. Mr Shonhe was arrested on 16th June on charges of perjury and spent ten days in custody before he got bail. On the 17th August he was acquitted on the ground that the State had utterly failed to make out a case for him to answer.

A forthcoming Peace Watch will raise questions about what lessons can be learnt from these cases and what can be done to prevent enforced disappearances, torture of activists and harassment of human rights defenders

The three groups listed for High Court trial are:

Group 1 [recruiters] – Concillia Chinanzvavana, Fidelis Chiramba, Violet Mupfuranhewe and Collen Mutemagau

Group 2 [recruiters] – Manuel Chinanzvavana, Pieta Kaseke, Jestina Mukoko, Audrey Zimbudzana and Brodrick Takawira

Group 3 [ bombers] – Kisimusi [Chris] Dhlamini, Gandhi Mudzingwa, Chinoto Zulu, Andrison Manyere, Zacharia Nkomo, Regis Mujeyi and Mapfumo Garutsa

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