OPINION: Legal and political intrigue in the curious case of Mukoko and others

Others like Gandhi Mudzingwa, Chris Dlamini and Anderson Manyere have
remained in custody since December despite being granted bail by the
High Court. They have been tortured and subjected to inhumane and
degrading treatment. All this in a country that claims to be
rehabilitated and in need of assistance to go forward!

On Tuesday, we read that Mukoko and his colleagues had been re-detained
at Chikurubi Maximum Security Prison following proceedings at the
Magistrates' Court in Harare.

Now, I am not a criminal lawyer but I like to think I can still read
criminal legislation in the context of our political situation. I am
interested to discover if this really has anything to do with the law.

The following is my attempt to shed light on what I believe is
happening; why it may well be within the law but is nevertheless
ridiculous, given the overriding national interest.

I will attempt as much as possible to put the language in layperson's
terms, although this is at the risk of oversimplifying it, something
that might disappoint my colleagues in the law.

What's the basis of the re-detention?

I understand that the basis upon which Magistrate Catherine Chimhanda made her decision to re-detain Mukoko and others is Section 66 of the Criminal Procedure and Evidence Act [Cap 8:07].

This law provides for the procedure for bringing an accused person to
trial before the High Court. This simplified procedure, commonly known
as the direct indict procedure is a departure from an old procedure
which required a preparatory examination in the Magistrates' Court
before indicting the accused person in the High Court for trial.

The types of offences that are tried by the High Court are called
indictable offences. Thus a person must be indicted – technical
language for the formal procedure of charging the person.

Subsection 1 of this provision states that:

If the Attorney-General is of the opinion that any person is under
reasonable suspicion of having committed an offence for which the
person may be tried in the High Court, the Attorney-General shall cause
written notice to be served on

(b) any magistrate before whom the trial of the offence could be held
in respect of the offence concerned; informing the magistrate of his or
her decision to indict the person concerned for trial before the High
Court and of the offence for which the person is to be tried.

Essentially, therefore, all the Attorney General needs to do is to
issue a written notice to the magistrate merely informing her that he
has made the decision to indict, i.e. to formally accuse a person for
trial at the High Court.

The AG must of course state the offence. It is worth noting here that
the AG is not asking the magistrate for permission to do so. He is not
placing evidence before the magistrate – he is merely informing' her
of his decision and of the offence.

Subsection 2 then states:

On receipt of a notice in terms of subsection (1), the magistrate
shall cause the person concerned to be brought before him or her and,
notwithstanding any other provision of this Act, shall forthwith commit
the person for trial before the High Court and grant a warrant to
commit him or her to prison, there to be detained till brought to trial
before the High Court for the offence specified in the warrant or till
admitted to bail or liberated in the course of law.

This means that once the magistrate has received the notice from the
AG, she is required to call the accused person to be brought before her
court. The provision uses peremptory language, i.e. the magistrate
shall forthwith commit the accused person for trial before the High
Court and also grant a warrant to commit the accused person to prison,
where the accused person shall be detained until brought to trial or
until admitted to bail or liberated in the course of law.

This language shows that, once the notice has been issued by the AG, the matter is by and large beyond the magistrate's control.

In the case of Mukoko and others, all that it took was for the AG to
issue the notice to the magistrate, as he did on May 4, 2009. The
effect of that notice is to cause the accused persons to be sent to
prison and the magistrate does not seem to have any discretion on this
– under the provision, she has to grant a warrant for the accused
people's committal to prison.

Under the provisions quoted above, the magistrate has little, if any,
power to question the nature and quality of evidence that the AG uses
to indict the accused person. That explains why Mukoko's lawyers are
not challenging the legality of what she has done but instead sought to
ask for evidence of the political decisions behind the March bail to be
heard.

The irony here is that it is the political decisions that have probably
caused the AG to issue the present notice that has caused the
re-detention. The magistrate's position would not have changed for the
simple reason that she does not have the power.

For the avoidance of doubt, it is important to note that the AG could
have done what he has done even on the day that Mukoko and others were
released in early March. He could have done it a day later, two days
later, indeed any day after their release.

What then has changed? Have they suddenly got enough evidence to give
them reasonable suspicion? Perhaps. But there could be another motive,
which has little to do with the law.

That the AG chose to do so on Monday, May 4, has to be considered
within the context of the on-going political negotiations, which have
probably hit a sticky patch.

A new legal roller-coaster

This means that the accused persons, Mukoko and others, now have to
restart the whole process of applying for bail, again. We know the
tortuous road they have had to travel before. We know the legal
bungee-jumps they have been subjected to as they were made to hop from
one court to another, all in vain until early March when they got
temporary respite.

So what's the problem? Is it the law? Is it the magistrate? Not quite.
It is the same creature I have mentioned in my work before – the human
factor.

Would it have made a difference under the older version of the law
which required preparatory examinations? Perhaps, then again perhaps
not – it could simply have added complications.

Those old provisions were removed for a good reason and the justice
system is predicated on the basis that the officers of the law, the AG
included, will uphold the Constitution and behave in a civilised
manner. It is expected that the AG will be fair, reasonable and use the
powers he has in a lawful manner, i.e. that there will be no abuse of
his authority. The presumptions are misplaced in today's Zimbabwe.

Now, why surely, must these accused people be sent to prison, two
months after getting bail? They have not breached their bail conditions
(at least there is no allegation that they have). Given the seriousness
of the charges they are facing, one might have thought they would do a
runner, especially having been subjected to inhumane and degrading
treatment during that initial detention. They did no such thing.

We should also not lose sight of the fact that the current indictment
— six months after their initial abduction — indicates very strongly
that their initial detention was unlawful. How do you arrest someone on
December 4, 2008, (in Mukoko's case) and spend a whole six months
before deciding that there is a reasonable suspicion that the person
committed an indictable offence, especially given the gravity of the
alleged offence?

A doomed union?

Cynics will be forgiven for holding on to the view that the cases were
always politically-motivated. They have been resurrected in part due to
the challenges of the current negotiations on outstanding matters
from the Global Political Agreement (GPA).

As always, the law is a good veil of legitimacy. Soon, the
justifications of the rule of law will be heard from those pulling
the strings. There is nothing inherently wrong with the law. The
magistrate has done nothing wrong – she has no power over this, legally
let alone politically!

To my mind, the problem is simple: It is that those charged with power
have seen it fit to tighten the vice-grip on the cojones of Msrrs
Morgan Tsvangirai, Arthur Mutambara, et al. These poor souls now
detained are the pawns. It's crazy. It's ridiculous.

I had wanted to believe very strongly that there is something beautiful
that can be salvaged from this political hybrid. But with each passing
day, even my own optimism, which, I must admit can be overly naive, has
taken a huge knock.

Dr Magaisa is a Zimbabwean lawyer based at Kent University.

wamagaisa@yahoo.co.uk

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