Defence applies for stay of prosecution
December 30, 2008
Jestina Mukoko
By Raymond Maingire
HARARE – The High Court will today hear an urgent application seeking to stop any further prosecution of Zimbabwe Peace Project director, Jestina Mukoko, and her workmate, Broderick Takawira, before a full inquiry into their kidnapping is launched.Judge, Elphas Chitakunye is today (Wednesday) expected to hear the case of Mukoko, a former staffer at the state-owned Zimbabwe Broadcasting Corporation, who was abducted from her home in Norton in the early hours of December 3. Her kidnappers were a group of armed men, who identified themselves as being policemen.
A few days after her disappearance, Takawira and another ZPP employee, were snatched from their offices in Harare .
The lawyers are also seeking a relief order that Mukoko and Takawira be released forthwith as their arrest and detention were declared unlawful.
The two have since been charged on alleged attempts to seek the overthrow of President Robert Mugabe through recruiting persons to train as bandits and insurgents.
“We are seeking an interdict to stop their further prosecution until the state is compelled to disclose the identity of their kidnappers,” Harare lawyer Beatrice Mtetwa told The Zimbabwe Times Tuesday.
The state admits the accused persons were kidnapped.
“There should be a full inquiry into those kidnappings and that police arrest those kidnappers before we can deal with these people as accused persons,” she said.
The state admits that the accused persons were abducted.
Said Mtetwa, “We want to know whether it would be proper to try them for any offence when they had initially been reported as kidnapped.
“The state must say where these people were being held all along. The state must also inquire into whether or not these people were lawfully held.
“The state cannot pretend not to know where the accused persons were over the past eight weeks.”
Mtetwa also wants the court to compel Police Commissioner-General, Augustine Chihuri to bring before the High Court persons who claim they received Mukoko and others from state security agents on December 22.
Police claim to have taken custody of the accused persons, alongside 30 human rights defenders and MDC activists from state security agents.
Before that, they had continuously denied any knowledge of their whereabouts.
Justice Anne-Marrie Gowora early this month ordered the police to release Mukoko.
In the event that they were not holding her, the police were ordered to do everything possible to search for her, including placing adverts in the press soliciting for information about her whereabouts.
“We are seeking an order for the Attorney General to show cause why he should not direct the police to investigate a criminal offence,” Mtetwa said.
The state is also resisting attempts to release Mukoko to a private hospital for treatment claiming that an army doctor identified as Chigumira attended to her when she was in custody.
Justice Yunus Omerjee last week ordered the release of Mukoko and eight others for treatment at Harare ’s Avenues Clinic pending what had been their impending appearance for remand hearing at the magistrate’s court last Wednesday.
They claim thery were tortured while in detention.
The state has filed an appeal with the Supreme Court to stop their release.
“We want the High Court to tell us if it is now legal to entertain a rogue state that comes with a defective document seeking to perpetuate an unlawful act.
“We hear there were rogue doctors who have already examined them while they were under torture,” said Mtetwa.
The state is saying the accuse persons did not need any treatment as they were attended to by an army doctor during their detention.
“We want the medical doctor who is said to have examined Mukoko while she was in her torture chambers to come and tell the court as to who called him to the torture chambers to come and minimize the trauma that they had suffered,” she said.
“We have no confidence in the doctors. They were hiding evidence of the torture and trauma to which they were subjected.”
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This is proving to be a case of criminals exposing themselves and courts being too scared to order their arrests. It will be interesting to hear what the investigating officer has to say in court. We had one police spokesman by the name of Andrew Phiri telling Zimbabweans and the whole world that the police had never arrested Mukoko and had no intention to arrest her for any crime. We have the Police Junta spokesman Wayne Bvudzijena now revealing that these people are under arrests and police have serious charges against them. I guess Andrew is now on leave and it would be interesting to have him appear in court as a defence witness.
How did the criminal Junta get into all this mess? There is no doubt that the original idea was to make these activists disappear all together but the pressure from Tswangirayi and SADC was too much for these murderers. It would have been much easier for the CIO to just dump these activists blind-folded at the gates of their homes in the wee hours of the night. Unfortunately some very dull member of the JOC thought dumping them at police stations and concorting very silly charges would help substantiate their claims about Botswana training bandits. I guess they had not really applied their minds before using missing people as actors in their fictional drama that was submitted to SADC as evidence. The unfortunate reality is that SADC will have to announce that their investigations proved that all this was a very poorly constructed fictional movie in the line of the inaudible Ari Ben Menashe circus.
I do not have legal training but the questions which Beatrice raises are quite pertinent and need to be answered. How do the police and the ‘government’ who all along denied knowledge of the whereabouts of Jestina and the other abductees, explain how these people ended up in court prosecuted on alleged charges of banditry. Zimbabweans deserve an explanation on this issue because it touches on the issue of when and how are people arrested and prosecuted. In fact the judgment that will be delivered in this case will expose our already ‘naked emperor’ and his new system of policing and justice delivery.
Mtetwa raises pertinent questions. If only her questions could get wider publicity so the whole world understands what the real issues are in Zimbabwe. It seems Mugabe has a ‘Guantanamo’ for the citizens of Zimbabwe. Anyone who opposes him in whatever way is seen as having ulterior motives. MDC must give both SADC and Mugabe an ultimatum and pull out of the circus. If SADC wanted to be fair, why don’t they push for a referendum to ask Zimbabweans how the GNU should be comprised? It is now time for the people to say enough is enough.
Indeed Ms Sarah HUNT – SADC is denying the people of Zimbabwe that very basic political right; self determination. There is a very clear road to resolving the political fiasco in Zimbabwe – let the people go to free and fair elections. The outcome will be as clear as a blue sky ! In fact it will be a real whitewash as long as ZANU-PF and Robert Mugabe and SADC play by the rules of the game. I doubt that we will even require more than 5000 SADC troopers to keep peace during the pending elections. Let them bring on the elections and let them bring on their old rag ! It will be a complete humiliation for him – if ZANU-PF are going to allow him to stand again as their candidate this time around – something I do not think ZANU-PF will be too daft to do !
This case just shows the quality of leadership we have been getting for the past 29 years. Mugabe and his dogs are showing new levels of myopia that would have made even the likes of Idi Amin green with envy. Surely the fact that the state is trying to build a case against victims of kidnapping in a case that even SADC chair dismissed is evidence of how clueless Mugabe and cronies are in addressing Zimbabwe’s problems and accepting the new reality that things have changed and it is no longer all about them.
These are surely the proverbial ‘kicks of a dying horse’.
Zimbabwe does not have a government. I wonder what the so called bandits were going to overthrow. This brings into question the legality of the charges. How do you overthrow a government that does not exist? Someone answer me please.
To Ngwaru Mapundu
Our constitution provides for a presidential election. A candidate that gets the most votes [by way of a clear majority in the first instance or at a subsequent run off] gets elected and becomes the President. By [allegedly] conspiring to launch an armed insurgency with a view to reversing the outcome of June 27 2008 elections, the accused were, for all intents and purposes, did plot to carry out an act of treason.
Political arguments such the elections being rigged, or opponents not allowed to campaign, or so and so candidate being killed or any other electoral impropriety does not in way constitute a defense to the charge.
All allegations for electoral impropriety such as vote rigging, gerrymandering, and so on can be lawfully challenged when the aggrieved parties bring the matter to court. The court will or may make any orders that it thinks fit and/or warranted taking into account all circumstances of the case, public interest considerations and the interest of justice.