Marondera Magistrate, Adonis Masawi, on 19 August 2008 acquitted Honorable Kay after ruling that the State had failed to prove its case against him. This was after Kay, who was arrested during the height of the state-sponsored violence against the opposition, spent two weeks locked up in police cells in Mutoko. The MDC legislator, who was subsequently granted bail, has been on remand ever since and was reporting twice weekly to the police prior to his acquittal on Tuesday.
Although ZLHR welcomes the long overdue exoneration of Hon Kay, we wish to register our protest at this further example of the unwarranted arrest, detention and harassment of legitimate political opponents and the abuse of criminal prosecution by the state.
It is necessary to note that, when the original prosecutor in this matter had sight of the docket, he instructed the police to release Hon Kay and proceed, if at all, by way of summons. It was only after the subsequent urgent intervention by the Director of Public Prosecutions, Florence Ziyambi, and prosecutor Tawanda Zvekare from Harare, who insisted that the matter proceed, that Kay was charged.
The inhumane treatment of Hon Kay represents a growing pattern of widespread and systematic persecution rather than legitimate prosecution of perceived political opponents and human rights defenders in the country. Kay’s decision to stand as Member of the House of Assembly in order to work for a better life for his constituents in Marondera Central and the treatment he has received as a result violates his constitutional right to participate in the governance of his country. The violation of his rights such as his unlawful arrest, his subsequent detention well in excess of the prescribed 48 hours before being formally charged, and the unwarranted seizure of his travel documents has a chilling effect on the lawful activities of others like him, as the state is no longer able to assure the public that it is willing to comply with its constitutional and international legal obligations to protect the rights of accused persons and prosecute only where there is reasonable suspicion and/or evidence of criminal behavior.
The magistrates’ ruling is a confirmation that the conduct of the police details remains grossly unprofessional and often amounts to serious violations of political opponents’ rights to liberty, security of person, and freedom of movement, speech and association. The acquittal of Kay, after similar acquittals of other opposition politicians, also worryingly demonstrates that the police are increasingly using detention as a harassment technique.
Worried by this escalating phenomenon of arbitrary arrests, detention and unsustainable charges, ZLHR therefore calls upon:
• The Zimbabwe Republic Police (ZRP) and other state agents to cease the practice and error of arresting first and investigating later in contravention of constitutional and other legislative safeguards preventing such action, and to comply with the legal requirement to have a reasonable suspicion that an offence has been committed before arresting an individual;
• The Office of the Attorney-General to professionally perform its function of providing correct and timely legal advice where it is clear that their clients are not complying with the law, and to ensure that they disprove the reasonable perception that they are complicit in allowing such prosecutions to continue where there is no evidence to sustain the charges;
• Both the ZRP and the Attorney-General’s office to maintain their independence, impartiality and professionalism and to ensure that the constitutional provisions protecting the rights of an accused person are respected at all times