The magistrate who had deferred her ruling on the application by the
prosecution to indict the accused to 4 May 2009, initially read her
judgement in which she granted the State leave to indict Mukoko and
those with whom she is jointly accused, but left all the other issues
connected thereto, to the High Court for determination.
The State which was represented by Michael Mugabe from the Attorney
General's office immediately sought to evoke section 169 of the
criminal evidence and procedure Act which provides for termination of
bail on a plea to indictment in the High Court, which he argued meant
that the bail granted to the accused had been automatically suspended
by the indictment and therefore the accused had to be remanded in
custody pending any fresh bail considerations before the high court.
However, Beatrice Mtetwa appearing for Mukoko along with Charles
Kwaramba argued that the Magistrates court could not revoke or suspend
the bail granted to the accused since Mukoko's release on bail came
about as a result of political intervention, and not as a result of any
ruling by the court. She argued that the decision to commit the Mukoko
to bail was a result of instructions given to the Attorney General's
office by the president acting in consultation with members of the
Joint Monitoring and Implementation Committee (JOMIC) pursuant to the
Global Political Agreement. This in her submission meant that the bail
could not be revoked unless the State could prove that this political
pact or compromise was no longer in force.
Mtetwa further argued that this arrangement was personally known to
Michael Mugabe, and Tokwe, both from the Attorney General's office who
actually communicated the details of the arrangement to the defence
counsel. Mtetwa also highlighted the fact that the agreement was also
known to Mishrod Guvamombe, who was the magistrate presiding over the
case then. Defence lawyers later requested permission to subpoena Tokwe
and two undisclosed members of JOMIC whom she argued were in fact aware
of the agreement in question. The application to subpoena the three
persons was granted and they will appear in court on 5 May 2009, when
they are expected to shed light around this matter.
In her ruling of deferment, the magistrate ordered that Mr Tokwe be
subpoenaed along with the two other undisclosed JOMIC members, during
which time the present bail conditions shall remain in force until a
determination is made on the basis of the evidence tendered by the
witnesses concerned on 5 May 2009.
Previously, the defence counsel had opposed Mukoko's indictment on the
basis that there was an appeal pending before the Constitutional Court,
in which Mukoko alleges a breach of her constitutional right to be
afforded the full protection of the law. This, the lawyers argued,
meant that she could not be indicted at any time before the hearing of
that application as it challenges the very basis of her intended
prosecution and indictment.
Background
Mukoko was granted bail on 2 March 2009 bringing to an end her 92-day
detention following her alleged abduction from her home in Norton on
the outskirts of Harare on 3 December 2008. Her whereabouts were
unknown until her subsequent appearance in court on 24 December 2008,
along with photojournalist Andersen Manyere. Before her release Mukoko
mounted numerous court applications in a bid to secure her freedom. If
the application by the state is upheld, then Jestina Mukoko might soon
lose her hard won freedom.