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Court produces Mukoko judgment - Court Watch 17/2012
October 04, 2012
Court Produces Judgment in 2009 Jestina Mukoko Case
It is hoped
that a reminder of this case and the universal abhorrence it aroused
[both inside and outside Zimbabwe] will now prompt the Minister
of Justice to fulfil his promise, made to the UN Human Rights Council
earlier this year, that Zimbabwe would sign the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
Mukoko v Attorney-General
On 20th September
the Supreme Court at last handed down its judgment explaining the
reasons for its order of 28th September 2009 stopping the prosecution
of Jestina Mukoko [copy of full judgment available from firstname.lastname@example.org].
It is regrettable that Mrs Mukoko, her co-accused and the country
have had to wait so long, a few days short of three years. Reasons
for judgement should have been expedited in such a landmark case,
- Mrs Mukoko’s
civil case claiming compensation has not been heard and the judgment
would be relevant.
- There are
other applications for permanent stays of prosecution awaiting
the clarification provided by the judgment. [Mrs Mukoko’s
abductees and former co-accused – who were indicted
for trial in the High Court on similar charges – have all
had similar requests for stays of prosecution referred to the
Supreme Court. Progress in hearing those cases will now be expected.]
- The judgment
will provide guidance to courts, the Attorney-General’s
Office and the legal profession, the police and the State’s
intelligence operatives, and the public generally, on:
- what the
constitutional prohibition of torture and inhuman or degrading
treatment entails – what constitutes torture, what differentiates
it from inhuman or degrading treatment, and the absolute nature
of the prohibition
- when a prosecution
is ruled out by torture or inhuman or degrading treatment and
when it is not ruled out.
writing with the concurrence of the Chief Justice and Justices Sandura,
Ziyambi and Garwe, said the case gave the Supreme Court the opportunity
“to clarify the law on the fundamental right of a person accused
of a crime not to have information or evidence obtained from him
or her by torture, or inhuman or degrading treatment, admitted or
used against him or her in any legal proceedings”.
made no order as to costs – which means that although it was
found that State agents had illegally abducted, detained and tortured
Mrs Mukoko and then wrongly prosecuted her, the State will not have
to pay Mrs Mukoko’s legal costs in these proceedings.
That the evidence
established that Mrs Mukoko had been forcibly taken from her home
on 3rd December 2008 and transported to an unknown place where,
when not under interrogation by her captors, she was kept totally
incommunicado in solitary confinement for nearly three weeks. During
interrogation she was severely beaten on the soles of her feet and
made to kneel on gravel for a prolonged period. She was questioned
about a man she was said to have helped to leave the country for
training in future insurgent and terrorist activities in Zimbabwe.
Eventually, after threats of further violence she wrote out a statement
saying what her interrogators told her to say and leaving out what
they told her not to say. Later she was video-recorded making another
statement, again saying what her interrogators wanted her to say.
On 22nd December, after nearly three weeks as a “disappeared”
person, she was handed over to police and the next day she was charged
with contravening section 24(a) of the Criminal
Law Code [recruiting for insurgency/terrorism training] and
was taken to the magistrates court to be remanded on that charge.
That the prosecutor
instituted the criminal proceedings against her solely on the strength
of the facts extracted from her by the above means at different
times during her unlawful detention.
The court reaffirmed
that section 15(1) of the Constitution
prohibits torture and inhuman or degrading treatment in absolute
terms. It explained that the provision “protects the dignity
and physical integrity of every person regardless of his or her
conduct. No exceptional circumstance such as the seriousness of
the crime the person is suspected of having committed, or the danger
he or she is believed to pose to national security, can justify
infliction of torture, or inhuman or degrading treatment.”
inhuman or degrading treatment “should never form part of
the techniques of investigation of crimes employed by law enforcement
agents ... the law which it is their duty to enforce requires that
only fair and humane treatment ought to be applied to a person under
The court did
not come up with its own definition of torture, but it did refer
with approval to the definition in the UN Convention against Torture
and Other Cruel or Inhuman or Degrading Treatment or Punishment,
which refers to “severe pain or suffering, whether physical
or mental, intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession
...”. It also described the distinction between torture and
inhuman or degrading treatment as lying in the intensity of physical
or mental pain and suffering inflicted. “Torture is an aggravated
and deliberate form of inhuman or degrading treatment. What constitutes
torture or inhuman or degrading treatment depends on the circumstances
of each case”.
treatment by State agents constituted torture [beating on the soles
of the feet, being made to kneel on gravel] and inhuman and degrading
treatment [solitary confinement, being held incommunicado, and being
blindfolded whenever not in solitary confinement or under interrogation].
obtained by torture must not be used by State
The State may
not in any circumstances “admit or use in any legal proceedings,
information or evidence obtained from an accused person or defendant
or any third party by torture or inhuman or degrading treatment”.
This rule applies at all stages in legal proceedings – not
only to the police but also to prosecutors, magistrates and judges.
It follows that if the police or other State agents do in a particular
case resort to torture or inhuman or degrading treatment to extract
information for the purposes of criminal proceedings, the duty not
to use the information falls in turn on the prosecutor, and, if
the prosecutor fails in his or her duty, on the judiciary, from
the magistrates court all the way up to the Supreme Court.
When the court
will not stop a prosecution, even after infliction of torture The
judgment concluded that proof of torture, or inhuman or degrading
treatment, by police or State security authorities before a decision
to prosecute is made, is not in itself enough to justify the stopping
of a prosecution by a court. To justify stopping a prosecution there
must also be proof that the evidence necessary for the decision
to prosecute was obtained by the torture or inhuman or degrading
treatment. But if a prosecutor reaches a proper decision to prosecute,
on the strength of independent evidence, untainted by the torture
or inhuman or degrading treatment – even if it is proved that
torture inhuman or degrading treatment has also taken place, the
prosecution can nevertheless go ahead.
is on this aspect of the case that the judgment does not go as far
as some human rights defenders had hoped. It was hoped that the
Supreme Court would decide that in principle any whiff of torture
or inhuman or degrading punishment would get a case thrown out as
an abuse of court process and an affront to the integrity of the
administration of justice. The court refused to go that far, saying
that to grant immunity from prosecution even to persons properly
suspected of having committed offences would be disproportionate
and contrary to the interests of the public and victims of crime.
Denying a stay of prosecution in such cases would not deprive victims
of torture or inhuman or degrading treatment other constitutional
remedies, such as compensation.
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