These accused persons were thus seeking
restitution of their property from persons who, though known to them,
had never been brought before a court of law to answer for the criminal
acts they had committed against them.
This matter has also been variously (and falsely) reported in the
state-controlled media (print and electronic) in relation to
politically motivated violence wherein individuals were seeking
retribution for election-related violence which occurred following the
March 2008 election.
On Thursday 18 February 2009 lawyers from ZLHR proceeded to Marondera
Magistrates' Court where the criminal cases against the accused persons
were to be heard. The accused persons had in fact been transferred to
Marondera Magistrates' Court from Mutoko Magistrates' Court. It was
discovered that the Magistrate at Mutoko Magistrate's Court had in fact
correctly recused (withdrawn) himself from presiding over their case
due to the undue pressure against him from members of the Zimbabwe
Republic Police (ZRP) who wanted him, at any cost and without
consideration of the facts and law, to deny accused persons bail and
ensure that they remained in custody.
At Marondera Magistrates' Court the accused persons were brought before
the State Prosecutor for vetting of the cases/allegations against them.
The Prosecutor then came to the conclusion that the police needed to
undertake more investigations in the matter; accused persons should be
released and would be summoned once the state was ready to prosecute.
Instead of heeding the legal advice of the Prosecutor, ZRP members at
Marondera Police Station led by one Officer Njanike, bundled the
accused persons into the bus that had brought them to Marondera from
Mutoko and detained them at Marondera Police Station where they spent
the night in unlawful detention – the prescribed statutory 48-hour
period having long since expired.
On 19 February 2009 lawyers from ZLHR returned to Marondera Police
Station to represent their clients and take instructions from them. The
lawyers were however denied access to their clients by the Officer
Commanding Law & Order, Detective Inspector Chimimba. The Office
Commanding Law and Order failed to tell the lawyers, upon inquiry, why
the police at Marondera were continuing to detain the accused persons
beyond the prescribed 48-hour period – more so without a warrant for
further detention. The accused persons had in fact already spent seven
(7) days in police custody without any warrant for their further
detention. After having spent almost three hours at Marondera Police
Station trying to access their clients Detective Inspector Chimimba
told the lawyers that they were taking the accused persons back to
Mutoko and that the lawyers should wait until the following day for
further information about their clients.
On 20 February 2009, lawyers proceeded to Mutoko Police Station. Again
the lawyers met with Detective Inspector Chimimba who again refused
them access to their clients citing that she was busy. After waiting
for almost an hour, at 12:48hrs, lawyers again made an attempt to see
their clients; initially they had access but then, without explanation,
their clients were rushed back into a Zupco bus which was to take them
back to Marondera. The lawyers followed their clients to Marondera
Magistrates' Court where at around 15:30hrs they were finally able to
meet with and interview their clients.
According to the 52 accused persons the following obtains:
Sometime on the 11th and 13th of February 2009, accused persons
embarked on an initiative wherein they sought to recover their property
which had been taken from them during the run-up to the second
presidential election of 27 June 2008. This property included chickens
and goats which the accused persons had been forced to take to bases
set up by fellow residents and ZANU-PF supporters. One such base was
Jembere Base in Ward 16 Mutoko, which base was led by one Temba
Nyamukondiwa and other persons known to the accused persons. At this
base those who were suspected to be supporters of the Movement of
Democratic Change candidate, Morgan Tsvangirai, were beaten and forced
to pay fines for supporting the opposition. These fines constituted
chickens and goats which were meant to be eaten by those who ran the
base. It must be noted that, despite their identities being known, none
of the persons who ran these bases, beat and stole the now accused
persons' property have been brought before the courts to answer to
criminal charges. Instead the now accused persons have been arrested
and detained for attempting to recover their property which was
forcefully and violently taken from them. The now accused persons were
arrested between 11 and 13 February while trying to recover their
property, as they moved to each home of those who had taken their
property sometime in 2008. This form of spoliation by the accused was
conducted in a peaceful manner, in fact with many of the persons from
who they sought return of the property admitting to having taken the
same and opting to return the said property or its value. Several
agreements were in fact signed between those involved as proof of
resolution of any outstanding disputes.
In fact, there was only one incident where there was resistance, when
those who sought to recover their property were attacked by at least 10
people wielding spears, baton sticks and axes, with at least one person
being stabbed in the hand by a spear. After overpowering their
attackers the group went on to explain that wanted to peacefully
recover their property, following which they were given back some of
the property by their attackers.
All the property, chicken and goats, which was recovered was
immediately slaughtered, cooked and shared among the group as a
ceremony of having finally recovered their property and reconciled.
It was on 13 February 2009 that at least 52 of the accused persons where arrested, detained and charged with robbery.
On 20 February 2009 at Marondera Magistrates' Court the accused
persons' lawyers were told by prosecutors that they had received the
usual instructions from above that the accused persons were not,
under any circumstances, to be granted bail. In fact the Prosecutors
advised that if the accused persons were granted bail they were
instructed to invoke section 121 of the Criminal Law (Codification and
Reform) Act, which Act allows the State to appeal against any granting
of bail by the Magistrate, during which time accused persons spend
another 7 days in police custody.
The lawyers representing the accused went on to file applications for
bail for all the 52 accused persons. In one of the two courts where
bail applications were made, the presiding Magistrate postponed any
decision on the application to Monday 23 February 2009. However, in the
other court the presiding Magistrate went on to pass his decision
wherein several of the accused were granted bail while others were
denied on the basis that their personal circumstances indicated they
would commit further offences if granted bail. Those who were granted
bail were however only taken back into custody after the prosecutors,
true to their orders, invoked section 121 of the Criminal (Codification
and Reform) Act. The State was not appealing because they had just
cause for doing so but simply as an unjustified means to keep the
accused persons in custody for another 7 days. In the end all 52
accused persons remained in custody. Three (3) ZANU-PF supporters who
had also been detained in relation to this matter were, surprisingly,
granted bail, and section 121 was NOT invoked. They have since gained
their freedom.
Clearly this was another highlight of the blatant abuse of section 121
by the State and an unjustified violation of the right to liberty and
protection of the law. Women and men aged between 22 – 77 years old
remain at Marondera Remand Prison waiting decision on their bail
applications and others awaiting a trial date.
ZLHR deplores any use of violence to resolve disputes amongst
individuals and instead calls for the use of peaceful conflict
resolution mechanisms to resolve what are in fact long-standing and
festering disputes arising from election/politically motivated violence
that was unleashed upon thousands of Zimbabweans over the past years.
In addition, the law enforcement authorities must prosecute all such
cases if there is to be a break in the cycle of impunity and a
reduction in such self-help incidents. Simply arresting victims who
seek their own justice, having been failed by the State's law
enforcement institutions and systems, and denying them bail even there
they may deserve the same can never be a solution to resolve the
divisions, anger, pain and hurt that has festered in Zimbabwe's
political society over the years.
ZLHR believes that justice must be seen to be done, wherein all those
who over the past years committed acts of violence, including beatings
and torturing people and stealing their property are made to account
for their actions. Victims of violence must be involved in such
processes, as a means of healing their pain and loss and achieving true
and lasting peace. Healing of victims and survivors cannot be achieved
in abstract; holistic victim-centered approaches which include
truth-telling, reparations and memorialization, have to be explored and
properly sequenced to achieve a lasting peace and harmony within the
communities.
ZLHR therefore calls upon the Ministry of Justice, Legal and
Parliamentary Affairs and the Ministry of Home Affairs to ensure that
their law enforcement and adjudication agents exercise their duties in
a non-partisan, lawful and transparent manner. The law should not be
selectively applied. Many Zimbabweans have lost faith in State
institutions which are relevant and critical to the restoration and
maintenance of peace, tranquility and justice. We now look to these
institutions to see whether they will restore the faith and confidence
in the justice delivery system through ensuring that justice does not
see favour or bias and that all are entitled to the protection of the
law.