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Deliberately delaying the release of all political prisoners violates the GPA

Focussing on clause 18.5 (j)

Sokwanele's ZIG Watch project has been documenting violations of the Global Political Agreement (GPA) signed between Zimbabwe's three main political parties. Through this article, Sokwanele aims to familiarise our readership with sub-clause 18.5(j), one of ten sub-clauses falling under Article XVIII of the Global Political Agreement (GPA) signed on September 15th 2008. Article XVIII of the GPA sets out to ensure the security of all Zimbabweans and to prevent future political violence.

Article XVIII, clause 18.5 (j) that while having due regard to the Constitution of Zimbabwe and the principles of the rule of law, the prosecuting authorities will expedite the determination as to whether or not there is sufficient evidence to warrant the prosecution or keeping on remand of all persons accused of politically related offences arising out of or connected with the March and June 2008 elections.

Accountability and responsibility

Clause 18.5(j) specifically targets Zimbabwe's prosecuting authorities. Under the GPA, the Ministry of Justice and Legal Affairs has been allocated to Zanu PF, so the political party chiefly accountable for breaches in Clause 18.5(j) is Zanu PF. The person directly answerable to the people of Zimbabwe and to SADC for any breaches of this clause is Patrick Chinamasa, the appointed Minister of Justice and Legal Affairs.

Patrick Chinamasa was also one of the principle members of Zanu PF's negotiating team in the drafting of the GPA, so he will be well-versed in both the letter and the spirit of the agreement. Very significantly, Chinamasa is also a Zanu PF representative on the Joint-Monitoring Implementation Committee (JOMIC) (Article XXII in the GPA). Under the terms agreed, members of JOMIC will monitor compliance with, and progress on, all the items agreed on within the GPA, including clause 18.5(j).

In short: Patrick Chinamasa helped draft the agreement that includes this clause; he is directly in charge of the Ministry that has the power to ensure it is complied with; and he is one of the people responsible for ensuring that all parties stick to the agreement on behalf of the people of Zimbabwe.

The relevance of clause 18.5(j)

Clause 18.5(j) seeks to ensure that the rule of law in Zimbabwe cannot be deliberately used as a political weapon by one political party against another, and that the rights and lives of Zimbabwean citizens are not subverted for political gain. Under clause 18.5(j), legal cases where a person is accused of a politically related offence should be dealt with quickly and without delay or prevarication - to expedite means 'to hasten the progress of; to work faster'.

The abduction and sustained detention of MDC activists and Zimbabwean human rights workers

At the very end of October 2008, alarming reports emerged of a swathe of military style abductions directed against political and human rights activists. Zimbabweans were forcefully disappeared from their homes and communities. 72 year old Fidelis Chiramba was one of the first abductees: Fidelis is a committed pro-democracy activist; he is the MDC-T's Zvimba South district chairperson and he stood as their Senatorial Candidate for Zvimba in the March 29 elections.

There were more abductions in November 2008: Concillia Chinanzvavana was among those taken. Concillia is the MDC-T Mashonaland West provincial Chairperson of the Women's Assembly and a member of the MDC National Council.

The horror repeated itself in December 2008: Jestina Mukoko, the Director of the Zimbabwe Peace Project, was abducted from her home on 3 December at 5am by fifteen armed men and Andrisson (Shadreck) Manyere, a freelance accredited journalist was seized ten days later.

The table below (click on it to view large) summarises what we believe to be the most current information available on all the people abducted to date. Three of the abductees have been quietly released; five of them are in hospital but remain prisoners under armed guard; and eleven are still in Chikurubi High Security. There is some uncertainty regarding the whereabouts of three further abductees: according to a Veritas Peace Watch mailing (16/01/09) the police have said that they are being held in protective custody as "state witnesses".

Table of political detainees - 23 february 2009

January 2009 saw three more arrests (as opposed to abductions) relating to charges that can also be described as 'politically related': Frank Muchirahondo and Daniel Mlenga, both USAID employees, are accused of trying to assassinate Air Marshall Perence Shiri. Meke Makuyana, MDC MP for Chipinge South, was arrested on 11 January and subsequently charged with terrorism.

In February, Roy Bennett, MDC-T Treasurer General and designated Deputy Minister of Agriculture, was seized from an airport on the same day Zimbabwe's new Cabinet Ministers were sworn in.

All of the abductions and arrests targeted people who have historically been treated by Zanu PF as 'political enemies'. All of them were arrested after the September 15th agreement was signed.

One does not have to be a lawyer to recognise the central importance of sub-clause 18.5 (j) to the future success of a power-sharing government where it is critical that there is trust between the parties. If the law is abused to 'settle old scores' or to 'hold parties to ransom' to secure political advantage, trust will be broken and the agreement will be compromised.

Unfortunately one neither does one need to be a lawyer to understand how thoroughly sub-clause 18.5(j) has already been compromised.

Failure to "give due regard to the rule of law" or to "expedite" investigations

Clause 18.5(j) demands that due regard is given by the prosecuting authorities to the "principles of the rule of law". There is nothing 'legal' or 'lawful' about armed men abducting civilians. Abduction is a crime. Rather than prosecuting those who are carrying out these crimes against civilians, the prosecuting authorities are participating in a courtroom farce where victims are further persecuted while their abductors remain free.

The very nature of an 'abduction' rather than an 'arrest' means that most of the victims have had their pre-trial rights ignored. An abduction means that they weren't given reasons why they were 'arrested', they were denied access to their lawyers and their family, and they were denied the protection of the law.

Arrest warrants are not produced when a person is abducted. A passenger at the airport where Bennett was seized described how, two hours after Bennett had been forcefully taken away, two members from Law and Order returned to the airport and tried to bully an immigration official into saying Bennett's name was not on the passenger list. It reveals that when the agents came for Bennett, they had no warrant and no cause, so they retrospectively tried to fabricate a charge that would justify keeping him in custody. In fact, the charges against Bennett kept changing, exposing the authorities own uncertainties over precisely why he was 'arrested' in the first place: Bennett was initially charged with attempting to 'leave the country illegally'; this was changed to 'treason', and finally to 'conspiring to acquire arms with a view to disrupting essential services'.

Bennett's experience differs from other abductees because he was extremely lucky to have witnesses present who were able to raise the alarm. Activists and friends maintained a vigil that ensured that state agents were unable to move Bennett to an unknown location. The others were less fortunate.

Regular updates from the lawyers struggling to secure the release of all the political detainees record a growing list of incidents that show the many ways in which the rule of law has been subverted. The state has done all they can to slow down, or delay the legal processes that seek to ensure that all detainees are protected by the rule of law. This is in complete disregard of sub-clause 18.5(j) that asks that the normal legal processes are expedited - sped up, hastened - when it comes to those held on politically related offences.

The law states, for example, that a person can only be held by the police for 48 hours before being brought to court. Some of the abductees were held incommunicado for as long as 55 days before lawyers found them! In fact, the police repeatedly denied they had any of the missing people in their custody, deliberately stalling legal access to them.

For several days after Mukoko was abducted, her lawyer, Beatrice Mtetwa, struggled to find a judge who would be prepared to issue a court order directing the police to release Mukoko or, if she was not in their custody, to investigate her abduction. Many Judges, she said, refused to hear the case, saying it was "too hot" to handle. Mtetwa was eventually successful and the police were ordered to investigate and disclose the identities of Mukoko's kidnappers, but on 2 January, the High Court refused to uphold the ruling and dismissed contempt charges against police for refusing to release Mukoko. A frustrated Mtetwa told reporters: "The law has completely broken down in Zimbabwe if a High Court refuses to investigate an admitted kidnapping".

All of those on remand are entitled under the law to routine remand hearings, but these are frequently missed with the police citing feeble excuses like 'no fuel to transport the prisoners to court'. It means the detainees are kept on remand for longer than the maximum fourteen days allowed under the law.

Those lucky enough to make it to court face further efforts to slow down justice. For example, four of the abductees were granted bail yesterday - Zulu, Nkomo, Garutsa and Mujeyi - but the Judge's order was immediately suspended when the State said they would appeal. This is a legal tactic used repeatedly by the state to ensure detainees will spend at least another week in custody while an appeal is lodged. All four abductees were returned to Chikurubi.

Failure to give "due regard to the Constitution of Zimbabwe"

Clause 18.5(j) requires that due regard is given to the Constitution of Zimbabwe as well as the rule of law and Article 15 of Zimbabwe's Constitution states that "No person shall be subjected to torture".

Many of the detainees have been viciously tortured: Mukoko was repeatedly assaulted, forced to kneel on hard gravel, and beaten on the soles of her feet with a truncheon; Chiramba, a 72-year-old man, was held in a deep freeze before scalding water was poured on his genitals; Mudzingwa was severely beaten with sticks, kicked, subjected to simulated drowning and had his feet smashed with bricks. Nine of the abductees were subjected to being hung by their wrists in handcuffs and beaten, having high-voltage electric shocks applied to them, and simulated drowning. Bothwell Pasipamire, who escaped from a torture camp after being abducted, later told the media about the horrific torture he had experienced.

Rather than display concern over the welfare of tortured civilians, the state ignored the successive court orders that sought to provide medical care to critically ill abductees. On the 6 February, doctors who finally saw the detainees said that eight of them were in a "grave condition" and required hospitalisation. Instead, they were returned to prison.

It took five court orders before Mukoko, Chiramba and Mudzingwa were finally hospitalised under heavy security. Zulu and Chinoto were admitted under the same conditions a few days later. On the 20 February the lawyer representing Manyere, Dhlamini, Mujeyi and Garutsa was still fighting to get prison authorities to obey a court order to take the four men to hospital, pointing to two court orders previously issued on the 16 of Jan and 16 Feb respectively. The Judge ordered that this is done immediately, and at the time of writing it remains to be seen whether the state will comply, or whether yet another court order will be ignored.

Zimbabweans must stand by all the political detainees and insist that the GPA is respected by all parties

Please send an email demanding the immediate and unconditional release of all the political detainees. Insist that the rule of law and Zimbabwe's constitution is respected. Insist that the terms of the GPA are adhered to by all parties.

Address your emails to Professor Welshman Ncube who is the current Chairperson of the Joint-Monitoring Implementation Committee (JOMIC). Ask Professor Ncube to share your concerns and feelings with the JOMIC committee (including Minister Patrick Chinamasa) and with President Motlanthe of South Africa in his capacity as the current Chair of SADC.

Send your emails to Sokwanele at newsletter@sokwanele.com. We will compile all your emails into one document and forward it to Professor Ncube.

We will not include your name or your email address in the document unless you ask us to.

Please forward this newsletter to everyone you know and ask them to stand up for our fellow Zimbabweans who have been treated so cruelly, and for the future of our country.