Jestina Mukoko, Broderick Takawira, Fidelis Chiramba, Violet Mupfuranhewe, Collen Mutemagau, Concilia Chinanzvavana, Manuel Chinanzvavana, Audrey Zimbudzana appear in court 13 Rotten Row Magistrates Court on 14 January 2009.

Harare Magistrate Olivia Mariga recuses herself from hearing the defence application and Magistrate Archie Wochiunga presides over proceedings in court.

Florence Ziyambi, the Director of Public Prosecutions (DPP) in the Attorney General’s (AG) Office notifies that the state cannot proceed with remand hearing in respect of Fidelis Chiramba, Manuel Chinanzvavana, Violet Mupfuranhewe, Collen Mutemagau and Concilia Chinanzvavana as there is an appeal pending in the High Court noted on the 2nd of January 2009. Defence lawyer Charles Kwaramba advises the court of the progress in the appeal. The matter is further postponed to 9: am 28 January 2009 pending finalization of the appeal. The DPP further indicates that the state intends to proceed with remand hearing proceedings in respect of Jestina Mukoko, Broderick Takawira and Audrey Zimbudzana as no appeal has been filed.

Defence lawyer Beatrice Mtetwa’s indicates that the court cannot proceed to place Jestina Mukoko and Broderick Takawira on remand as the state has approached the court with dirty hands by proceeding to arraign victims of abduction before a court. She indicates her intention to apply for referral to the Constitutional Court as certain issues have to be determined by the Constitutional Court. The issues relate to a number of Mukoko’s fundamental rights, supposedly protected under the Constitution of Zimbabwe, which have been violated without redress. The Constitutional Court will be asked to order that Mukoko not be prosecuted on the basis of evidence obtained through an enforced disappearance and torture, and that she be released and her abductors arrested and prosecuted for their part in these crimes.

Ziyambi opposes the intentions of the defence lawyers, arguing that such an application is already pending before the Supreme Court, which must make a determination first. The defence team argues that she is deliberately misleading the court, as the matter has already been considered and finalized, and judgment handed down by Chief Justice Chidyausiku (ref:
Jestina Mungarewa Mukoko v. Commissioner-General of Police & 4 Others SC3/09). In addition, Ziyambi should be aware of this, as the Deputy Attorney-General, Prince Machaya, represented the Respondents in that matter. The court is adjourned to 2: 30 pm to enable the state to verify the position of the Constitutional Court application, more particularly on whether a judgment was handed down.

When proceedings resume, Ziyambi continues to insist that the matter cannot be heard in the Magistrates’ Court and produces a copy of the defence team’s Supreme Court Application – purportedly as her proof that the matter is still pending. The defence, however, informs the Magistrate that Chidyausiku delivered judgment on Monday 12 January 2009, and produces a copy of the judgment in which he holds that Mukoko must apply to the Magistrates’ Court for referral of the matter to the Supreme Court for constitutional determination.

Ziyambi produces a copy of the defence team’s Constitutional Court application arguing that the matter is still pending before the Constitutional Court and defence cannot proceed to make further application pending finalization of the Constitutional Court. Beatrice Mtetwa challenges the submission of exhibits without the prior consultation of the defence team, she highlights that the court has to determine whether the Constitutional Court issued a judgment in the pending application, which was heard in chambers by Chief Justice Godfrey Chidyausiku on Monday 12 January 2008. The defence team informs the Magistrate that Chidyausiku’s judgment, which he delivered on Monday 12 January 2008 refers defence lawyers to approach the lower courts with an application for referral to the Constitutional Court first before the matter can be entertained in the Constitutional Court.

State lawyers first profess ignorance of Justice Chidyausiku’s judgment, the court is further adjourned to enable the state lawyers to peruse Chidyausiku ‘s judgment. The court resumes after 15: 45 pm. Ziyambi finally concedes that the application can indeed be made, but only after having effectively wasted an entire court day. She further indicates that the defence lawyers can proceed to apply for referral to the Constitutional Court.

In Jestina Mukoko vs Commissioner General of Police and others ref: SC 3/09, handed down on 14 January 2009, Justice Chidyausiku accepts that the matter is urgent but dismisses the application as the applicant was supposed to apply for referral of her case to the Constitutional Court from the Magistrates court in terms of section 24(2) of the Constitution as the alleged violation of the rights has arisen in a subordinate court.
Chidyausiku further states that the applicant Jestina Mungarewa Mukoko should be afforded appropriate medical attention as a matter of urgency with Mr Machaya from the AG assisting as he has undertaken to do so.

Magistrate Wochiunga adjourns the matter in respect of Jestina Mukoko, Broderick Takawira and Audrey Zimbudzana to 11:15 am on Thursday 15 January
2009 for continuation of any further applications to be made.

In the High Court, meanwhile, where the Urgent Application for the production of the missing abductees was due to be argued at 10:00hrs, Nelson Mutsonziwa of the Attorney-General’s office and Chief Superintendent Nzombe advise that they are not ready to proceed as they are still conferring with their clients. Chitakunye J grants a postponement to the following day at 14:15hrs.

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