Wednesday, February 4, 2009

Abductees’ Update

02 February 2009
SW Radio Africa
• At around 09:00hrs, bail application proceedings in the matter of Jestina Mukoko v. The State (Ref: HCB 88/09) and Concillia Chinanzvavana and 5 Others v. The State (Ref: HCB 94-99/09) resume in the High Court before Justice Alfas Chitakunye. Mrs. Florence Ziyambi appears for the State while Mr. Harrison Nkomo appears for Mukoko and Mr. Charles Kwaramba appear for Chinanzvavana and others.
• Ziyambi raises a point in limine (preliminary objection) that Jestina Mukoko’s bail application should not be entertained by the High Court as she has not been formally charged by the Magistrates’ Court and consequently she has not been placed on remand. She asserts that although Jestina Mukoko has appeared in the Magistrate’s Court, bail can only be entertained if she has been made aware of the charges and the evidence that the State has against her. Ziyambi therefore argues that the bail application should be struck off the roll as it is not properly before the Court.
• In response, Nkomo submits that the High Court is being asked to interpret the right to liberty of the accused person and the right to a fair trial as envisaged in the Constitution of Zimbabwe. The issue before the Court is whether a person who has not undergone formal remand proceedings can apply for bail. He further submits that Ziyambi is misinterpreting the concept of bail. He goes on to submit that a person who is arrested by the police and detained becomes aware of the charges when taken in by the police and made to sign a warned and cautioned statement.
• Nkomo accuses Ziyambi of misleading the Court by arguing that the High Court is not obliged to entertain Mukoko’s bail application before remand proceedings are concluded, particularly as Mukoko was charged upon being detained by the police and appeared on the charge in court on 24 December 2008 regardless of the fact that she had been abducted and subjected to an enforced disappearance. This was the position also asserted by the Supreme Court, when Chief Justice Godfrey Chidyausiku had advised that a referral of constitutional issues had to be made through the Magistrates’ Court, before which Mukoko had appeared. He insists that the High Court must, as of necessity, entertain Mukoko’s bail application to enforce her constitutional rights.
• Justice Chitakunye defers ruling on the point in limine (preliminary objection) to Wednesday 4 February 2009.
• In the bail applications for Concillia Chinanzvavana and 5 others, the applicants’ lawyer, Charles Kwaramba, in response to a point in limine similar to that raised in Jestina Mukoko’s case, accuses the State prosecutors of attempting to restrict the term ”charge” to mean a formal remand in court. Kwaramba states that his clients are seeking bail pending a determination of an appeal lodged in the High Court against a decision by the Magistrates’ Court to place them on remand. He adopts Nkomo’s earlier argument for the avoidance of repetition.
• In response Ziyambi argues that the High Court should determine the meaning of bail application and should look at all the provisions relating to bail applications. She also adopts her earlier submissions made in Jestina Mukoko’s case.
• Justice Chitakunye again defers his ruling on the bail application to Wednesday 4 February 2009.

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