(AS AT 09:00HRS ON 6 JANUARY 2009)
For detailed accounts of the events of 23 and 24 December 2008, please consult ZLHR press releases of the same dates.
25 December 2008:
State representatives purport to file a Notice of Appeal against the High Court Order granted by Justice Yunus Omerjee on 24 December 2008 (ref: HC 7166/08). Instead of complying with the Rules of the Supreme Court, the Notice is filed in the High Court and bears no stamp or case number from the Supreme Court, therefore being defective and of no force and effect. It is also unclear why the appeal has been noted, apart from a reasonable perception of an attempt in bad faith to prevent the Order being implemented, as the Respondents had agreed on record to all provisions contained in the Order in Omerjee J’s Chambers during the hearing.
On the strength of this defective Notice, Chief Superintendent Magwenzi advises the abductees’ legal team that he and others will not be complying with Omerjee J’s Order on the advice and instructions of Florence Ziyambi, from the office of the Attorney General, who told him not to comply as "an appeal has been filed and has suspended the High Court Order".
In the meantime, Jestina Mukoko, Broderick Takawira, Fidelis Chiramba, Collen Mutemagau, Concillia Chinanzvavana, Manuel Chinanzvavana, Pieta Kaseke, Violet Mupfuranhehwe and two-year-old Nigel Mutemagau (hereinafter referred to as "Mukoko and 8 others") are removed from Harare Remand Prison (to which they had been ordered to be taken by Magistrate Guvamombe) to Chikurubi Prison, with the men being held at Chikurubi Maximum Security, and the women and the 2-year-old child being held at Chikurubi Female Prison.
The remainder of the confirmed abductees, namely Chris Dhlamini, Gandi Mudzingwa, Chinoto Zulu, Zacharia Nkomo, Mapfumo Garutsa, Andrison Manyere and Regis Mujeye (hereinafter referred to "Dhlamini and 6 others") remain in police custody at various police stations throughout Harare on the strength of Warrants of Further Detention issued by Magistrate Cathrine Chimanda.
The remaining two confirmed abductees, Pascal Gonzo and Tawanda Bvumo, are also returned to Rhodesville police station despite the fact that the police and Florence Ziyambi and Tawanda Zvekare from the Attorney General’s Office previously made submissions on record in the Magistrates’ Court that these individuals were not in police custody.
26 – 27 December 2008:
Lawyers attend at various police stations in attempts to access Dhalmini and 6 others, as well as Gonzo and Bvumo. They are all advised that a directive has been issued that morning (unclear from which authority) that no lawyers are to have access to any of the abductees, and neither are they to be allowed any food or visits whatsoever from lawyers and/or relatives. All police at all involved police stations refuse to comply with Omerjee J’s Order, despite service upon them, to urgently remove them to Avenues Clinic, and to release Gonzo and Bvumo forthwith, again citing superior orders.
Lawyers confirm that Mukoko and 8 others have been moved from Harare Remand Prison to Chikurubi. Upon attendance at Chikurubi Maximum Security, they are denied access to all their male clients. Lawyers however manage to have access to the women and minor child at Chikurubi Female Prison, although they are prevented from consulting their clients in privacy, as is required in terms of the Constitution of Zimbabwe, to take proper instructions.
28 December 2008:
Lawyers return to Chikurubi Female Prison in attempts to take instructions for the hearing the following day. They are advised that all save for Violet Mupfuranhehwe and her two-year-old child have been removed to Chikurubi Maximum Security Prison, although they refuse to disclose the reasons and who gave the instructions for their removal.
29 December 2008:
Virginia Mabiza from the Attorney General’s Office files a second Notice of Appeal in the Supreme Court, confirming that the previous Notice was defective and that the Order of Omerjee J has effectively been flouted with impunity for the past 6 days.
Lawyers are finally allowed access to Mukoko and others held at Chikurubi Maximum Security for a brief time before they are taken to the Magistrates’ Court. They are produced from solitary confinement, in handcuffs and leg irons, with the majority of the men wearing torn shorts exposing their upper thighs, buttocks and genital region. Prison officers are requested to ensure that they are provided with suitable clothing for their appearance in court.
Again, lawyers are unable to obtain comprehensive instructions due to lack of time before the court appearance, and the fact that prison officers refuse to allow privacy for consultations as provided for in the Constitution of Zimbabwe.
Dhlamini and 6 others, Gonzo and Bvumo, are finally brought to court in batches, and confined to the cells at the Magistrates’ Court. Lawyers are able to have access to them for the first time in order to take very brief preliminary instructions.
Lawyers are advised for the first time that Mukoko and 8 others are to be charged with contravening section 24(a) of the Criminal Law (Codification and Reform) Act for allegedly recruiting or attempt to recruit individuals for training in banditry, insurgency, sabotage or terrorism, which carries a potential sentence of life imprisonment in the event of conviction.
Lawyers are advised for the first time that Dhlamini and 6 others are to be charged with the bombings of various police stations, railway lines etc and engaging in acts of banditry, insurgency, sabotage or terrorism under section 23 of the Criminal Law (Codification and Reform) Act, which carries a potential death sentence in the event of conviction.
Lawyers are advised for the first time that Gonzo and Bvumo are to be charged with assisting perpetrators of crimes after commission of the crimes under section 206(a) and (b) of the Criminal Law (Codification and Reform) Act. The sentence upon conviction is the same as that of actual perpetrators of the alleged crimes, therefore meaning a potential life imprisonment sentence.
Lawyers for the defence place on record the hurdles they have faced in accessing their clients, the torture to which they have been subjected, and insist on compliance with the Order of Omerjee J – for either the immediate release of various individuals, or the urgent removal of others to Avenues Clinic for medical examination and treatment. Magistrate Mishrod Givamombe postpones the various matters to the following day for rulings.
30 December 2008:
Magistrate Guvamombe hears further arguments in relation to various individuals and rules that all abductees before the court are to be held over in custody at Chikurubi Maximum Security Prison Hospital, and that they are to be medically examined there by medical practitioners of their choice. In the meantime, the matter is postponed to Monday 5 January 2009 pending the outcome of the medical examinations.
In relation to the cases of Gonzo and Bvumo, he advises that he will rule the following day.
All individuals are returned to Chikurubi.
In the afternoon, lawyers attend at Chikurubi Maximum Security Prison with the medical team. They find that their clients are not being held as ordered in the Prison Hospital, but are being kept in solitary confinement in the Maximum Security Prison. They have now been joined by the final confirmed abductee, Violet Mupfuranhehwe and her son, two-year-old Nigel Mutemagau, who are now also to be held in solitary confinement at the Maximum Security Prison.
Doctors examine all individuals, who are led to the Prison Hospital in handcuffs and leg irons. Doctors are refused permission to examine the patients without the presence of prison officers, in breach of patient-doctor confidentiality.
Medical affidavits are produced for all individuals, which confirm their statements of varying levels of torture during their abduction and incarceration at various detention centres in Harare. The affidavits further confirm that the facilities at the Prison Hospital are basic and unsuitable for comprehensive examination and treatment, and that such medical examinations and treatment need to be carried out at a well-equipped hospital.
31 December 2008:
The Magistrate orders that Pascal Gonzo and Tawanda Bvumo should be released as per Omerjee J’s order of 24 December 2008.
Whilst the Clerk of the Magistrates’ Court is signing the Warrant of Liberation for Gonzo and Bvumo, Florence Ziyambi communicates with Magistrate Guvamombe and advises him orally that the state will be appealing against their release. The Magistrate calls for the Clerk of Court and advises him not to issue the Warrants of Liberation, despite the fact that no proper appeal has been filed as required in terms of the law. [In such instances, the State must make an application to the High Court for permission to appeal the ruling, and this has not been done to date.] As a result, Gonzo and Bvumo are unlawfully and unprocedurally returned to Chikurubi Maximum Security Prison.
A further Urgent Chamber Application is filed in the High Court (ref: HC 7169/08) on behalf of Jestina Mukoko and argued before Justice Alphas Chitakunye.
The first argument made on Mukoko’s behalf is that the police should disclose who handed her over to the police, explain their failure to arrest and prosecute such individuals for kidnapping (as police had confirmed on record through Chief Superintendent Nzombe, the police legal adviser that they were treating her disappearance as a criminal case of kidnapping), and ensure that the Attorney General’s office not prosecute Mukoko on the current charges and/or until such time as the kidnapping case is completed. The Minister of State Security, Didymus Mutasa, files an affidavit in the matter in which he confirms that the abductions were carried out by state security agents. He further argues that the identities of the abductors (who are under his authority and control) cannot and should not be disclosed, as investigations are still ongoing and that disclosure would prejudice national security.
The second argument centres on the request of Mukoko’s lawyers that, on the basis of the medical affidavits, she be taken forthwith to Avenues Clinic for further medical examination and treatment.
All individuals remain incarcerated in solitary confinement at Chikurubi Maximum Security Prison and not the Prison Hospital.
2 January 2009:
Chitankunye J makes a ruling in Mukoko’s Urgent Chamber Application which was argued on 31 December 2008. The judge is convinced that Minister Mutasa filed his affidavit in good faith and refuses to order the disclosure of the identities of the perpetrators of the abductions or their investigation and prosecution. He however orders that Mukoko be taken to Avenues Clinic for further medical examination and returned from there to Chikurubi. He is not convinced that she cannot be treated at the Prison Hospital and refuses to make an order that she be allowed medical treatment at Avenues Clinic despite the fact that the State has not contested the fact that she was tortured during the course of her abduction and interrogation at the hands of security agents.
3 January 2009:
Lawyers attend at Chikurubi Maximum Security Prison to have Chitakunye J’s Order enforced. They are advised that they need to liaise with the Officer in Charge, Chikurubi Female Prison, one Chifodya (female), under whose authority Mukoko falls, despite the fact that she is being detained at Maximum Security.
Upon attendance at the Female Prison, Chifodya is served with the Order. She telephones Deputy Commissioner of Prisons, Chikwature who instructs her not to comply with the order until such time as the Prison Hospital doctor, one Dr Makadza, has authorized Mukoko’s removal. The Officer in Charge is asked whether the doctor has superior powers to those of a High Court judge, and responds, "I don’t know about that. All I know is that I am very junior, and I am acting on instructions I have received’".
Mukoko therefore is effectively refused further medical examination and remains in solitary confinement as this High Court Order continues to be defied.
On the same day, prison officials at Chikurubi and the Matron at the Prison Hospital seek urgent contact with the abductees’ medical practitioners, as they need drugs and other treatment for them which are unavailable at the Prison Hospital.
Lawyers file a further Urgent Chamber Application at the High Court seeking the removal of all 18 detainees to Avenues Clinic for further examination and treatment in line with the medical affidavits received from the medical team which examined them (ref: HC 03/09). Initially, a number of judges seem reluctant to handle the matter; it is however eventually set down for hearing before Justice Anne-Marie Gowora at 12:00hrs the following day.
4 January 2009:
Lawyers attend at the High Court to argue the Urgent Chamber Application before Gowora J just before 12:00hrs. Although the application clearly makes reference to the fact that the individuals have been tortured (a crime prohibited in terms of the Constitution of Zimbabwe and international law and which should move judicial and prosecutorial authorities to order treatment and investigate the crime and the perpetrators) and have suffered severe injuries which require urgent further examination and treatment at a well-equipped hospital, lawyers are advised that she has refused to hear the matter on the basis that the medical affidavits filed together with the application are ones used in criminal cases, and not civil, so the papers are not in order. [This appears to be incorrect at law, as legislation clearly indicates that such evidence can be used in both criminal and civil proceedings; in any event, the doctors were present at the High Court to give oral testimony, but the judge was not moved by this.]
Upon being further contacted, Gowora J instructs lawyers to file fresh medical affidavits and advise her when the affidavits have been brought to the High Court. This is done in less than an hour; however when the Clerk attempts to contact the judge, Gowora J has switched her telephone off and remains unreachable for the rest of the day.
5 January 2009:
Defence lawyers attend at the High Court at 09:00hrs in attempts to establish when Gowora J will hear the Urgent Application now that the medical affidavits are "in order". They are advised that Gowora J considers that she has finalized the matter. She indicates that the lawyers should refer back to Judge President Rita Makarau.
The Judge President is approached to allocate the matter to another judge.
On this basis, lawyers attend the Magistrates’ Court and make applications for all the detainees to have their matters in that Court postponed pending the outcome of the Urgent High Court Application. Mukoko and Broderick Takawira have their matter postponed to 6 January 2009, while the rest of the detainees have their matters postponed to 7 January 2009 in the Magistrates’ Court.
In relation to Pascal Gonzo and Tawanda Bvumo, it is clear that the state has not filed a proper appeal, and they have remained in custody in defiance of the previous Order of Guvamombe since 31 December 2008 (as described previously). Their lawyer attempts to make an application to have them released immediately. Magistrate Olivia Mariga refuses to entertain any application in this regard, and they remain in custody, held over in solitary confinement, until 7 January 2009 where they are to appear again in the Magistrates’ Court.
At around 17:00hrs, lawyers are advised that the Urgent Application in the High Court is now before Justice Lavender Makoni. She indicates that she is still perusing the papers, and will advise the lawyers when the matter will be heard. At the time of this information release the matter, although filed as an Urgent Chamber Application on 3 January 2009, has yet to be set down for hearing.
Points of Information:
None of the abductees have yet been formally charged and/or placed on remand in the Magistrates’ Court. They are merely being held over in custody and this has continued since they were first brought before a magistrate on 24 December 2008 (Mukoko and 8 others) and 29 December 2008 (Dhlamini and 6 others, Gonzo and Bvumo).
Their lawyers still intend to challenge any attempts made by the State to place the abductees on remand on various grounds, which will become public as the matters progress.
For further information, contact Zimbabwe Lawyers for Human Rights:
Landline: (+263-4) 708118 or 251468
Mobile: (+263-11) 619747 or 619749