At least 32 Movement for Democratic Change and civil society activists remained in custody though High Court judge Yunus Omerjee had ruled that police should immediately release 23 MDC and civil society members who had been located in police custody but were not subject to detention orders.
Eight of the detainees (including a child) had appeared before magistrate Mishrod Guvamombe to face charges of recruiting people for military training.
All except Zimbabwe Peace Project Director Jestina Mukoko and ZPP Provincial Chair Broderick Takawira were MDC leaders from Zvimba South who had been abducted at the end of October and were the subject of a November 11 High Court order by Judge Charles Hungwe that declared their continued detention unlawful.
Mukoko and Takawira were the subject of other High Court orders earlier in December calling for police to release them, if they were in custody.
State prosecutor Florence Ziyambi argued that the eight detainees’ continued custody was justifiable because of “what’s going on between Botswana and Zimbabwe and how Botswana has been interfering in Zimbabwe’s internal affairs”.
She told the court that the group had been detained because of the “seriousness” of the crimes and other recent events including police station bombings and the alleged assassination attempt on Air Marshal Perrence Shiri.
The group of eight was charged with contravening section 24(a) of the Criminal Code “for recruiting or training insurgents, bandits, saboteurs, or terrorists”.
Full cable:
Viewing cable 08HARARE1145, DETAINEES REMAIN IN CUSTODY, DESPITE COURT ORDERS
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Reference ID |
Created |
Released |
Classification |
Origin |
VZCZCXRO7068
OO RUEHDU RUEHMR RUEHRN
DE RUEHSB #1145/01 3651344
ZNY CCCCC ZZH
O 301344Z DEC 08
FM AMEMBASSY HARARE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3862
INFO RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHAR/AMEMBASSY ACCRA 2516
RUEHDS/AMEMBASSY ADDIS ABABA 2639
RUEHRL/AMEMBASSY BERLIN 1132
RUEHBY/AMEMBASSY CANBERRA 1908
RUEHDK/AMEMBASSY DAKAR 2263
RUEHKM/AMEMBASSY KAMPALA 2688
RUEHNR/AMEMBASSY NAIROBI 5116
RUEAIIA/CIA WASHDC
RUZEJAA/JAC MOLESWORTH RAF MOLESWORTH UK
RHMFISS/EUCOM POLAD VAIHINGEN GE
RHEFDIA/DIA WASHDC
RUEHGV/USMISSION GENEVA 1795
RHEHAAA/NSC WASHDC
C O N F I D E N T I A L SECTION 01 OF 04 HARARE 001145
SIPDIS
AF/S FOR B. WALCH
DRL FOR N. WILETT
ADDIS ABABA FOR USAU
ADDIS ABABA FOR ACSS
STATE PASS TO USAID FOR E. LOKEN AND L. DOBBINS
STATE PASS TO NSC FOR SENIOR AFRICA DIRECTOR B. PITTMAN
E.O. 12958: DECL: 11/18/2018
TAGS: PGOV PREL ASEC PHUM KDEM ZI
SUBJECT: DETAINEES REMAIN IN CUSTODY, DESPITE COURT ORDERS
FOR RELEASE
REF: A. A. HARARE 1183
¶B. B. HARARE 1121
¶C. C. HARARE 1100
¶D. D. HARARE 532
Classified By: Charge d’Affaires a.i., Katherine Dhanani for reason 1.4
(d).
——
SUMMARY
——-
¶1. (C) At least 32 MDC and civil society activists remain in
state custody following court hearings regarding their
detention and charges facing them. On Christmas eve, eight
detainees – including Zimbabwe Peace Project Director Jestina
Mukoko – appeared in a magistrate’s court for their bail
hearing, but the magistrate deferred judgment until December
29, as the High Court was simultaneously hearing an urgent
application calling for their immediate release. Later on
December 24, High Court Judge Yunus Omerjee ruled that police
should immediately release 23 MDC and civil society members
who had been abducted since as early as late October 2008,
had been located in police custody, but who had not been
subject to detention orders. The judge also ruled that nine
others who were the subject of orders of detention, including
the eight who appeared before the magistrate, should be taken
under police guard to a private hospital to be examined for
indications of torture. However, on Christmas day, police
defied the court order and refused to release any of the
detainees or transport any to a hospital. Instead, all were
kept in police custody with some transferred to Chikurubi
Maximum Security Prison just outside Harare. The State
brought 19 of the 32 to court and submitted an appeal to
Omerjee’s order in the Supreme Court on December 29. As of
December 30, all remain in State custody and lawyers have had
little or no access to the detainees. END SUMMARY.
——————————————— —
No Christmas Miracles in the Magistrate’s Court
——————————————— —
¶2. (SBU) On the afternoon of December 24, a group of eight
detainees (including a child) the police had previously
denied having in custody appeared for a bail hearing before
magistrate Mishrod Guvamombe to face charges of recruiting
people for military training (Ref A). Dozens of diplomats,
MDC supporters, journalists and members of civil society were
present to observe the court proceedings. All of the
detainees except Zimbabwe Peace Project Director Jestina
Mukoko and ZPP Provincial Chair Broderick Takawira were MDC
leaders from Zvimba South who had been abducted at the end of
October (Ref C) and were the subject of a November 11 High
Court order by Judge Charles Hungwe that declared their
continued detention unlawful. Mukoko and Takawira were the
subject of other High Court orders earlier in December
calling for police to release them, if they were in custody.
¶3. (SBU) Lawyers from Zimbabwe Lawyers for Human Rights
(ZLHR) represented the group and argued that the detainees
should be immediately released in line with a series of High
Court orders (Ref C) that mandated police to release abducted
individuals in their custody, and – if they were to be
charged – to bring them to court through a summons.
¶4. (SBU) State prosecutor Florence Ziyambi argued that police
had not defied court orders since the detainees had not been
in police custody when relevant orders to police were issued
on November 11. She presented three loose-leaf pages,
allegedly from a police station log book, to buttress her
HARARE 00001145 002 OF 004
claim. The alleged logbook showed that several of the
detainees had been released by police on November 4. She
said that at some point later state security agents took
custody of the individuals, but did not specify when. (NOTE:
Ziyambi was also the prosecutor in the bail hearing of MDC
Secretary General Tendai Biti (ref D) and has also been
called by the Attorney General’s office to act as prosecutor
in other political cases. END NOTE.)
¶5. (SBU) Ziyambi also argued the detainees’ continued custody
was justifiable because of “what’s going on between Botswana
and Zimbabwe and how Botswana has been interfering in
Zimbabwe’s internal affairs.” She told the court that the
group had been detained because of the “seriousness” of the
crimes and other recent events including police station
bombings and the alleged assassination attempt on Air Marshal
Perence Shiri. The group of eight was charged with
contravening section 24(a) of the Criminal Code “for
recruiting or training insurgents, bandits, saboteurs, or
terrorists.” The maximum penalty is life imprisonment.
¶6. (U) Simultaneously on the afternoon of the 24th, the High
Court accepted an urgent application from ZLHR to immediately
release 32 detainees, including the eight who had appeared in
the magistrate’s court, on the grounds that they were being
held illegally. With this application pending, the
magistrate said he did not want to “snatch” judgment from the
High Court and said he would defer his ruling on bail until
8:30 on the morning of Monday December 29. awaiting a
decision on bail.
——————————————— ———
Police Refuse High Court Order to Release 32 Prisoners
——————————————— ———
¶7. (SBU) Late on December 24, High Court Judge Yunus Omerjee
issued a final order to the Commissioner General of Police
and Chief Superintendent Magwenzi (who told lawyers he was
the investigating officer) concerning the 32 prisoners known
to be in custody. He ordered that Mukoko and eight others
being held under warrants of detention should be released to
Avenues Clinic under police guard to be examined for signs of
torture by a doctor of their choice. He declared that the
remaining prisoners (for whom no warrants of detention had
been issued) should be immediately released as they were
illegally in custody.
¶8. (U) Police refused to comply with Omerjee’s order. All
detainees were kept in custody. Some were moved to Chikurubi
maximum security prison. None were transferred to a medical
facility.
¶9. (U) On December 29, the State appealed Omerjee’s December
24 order to the Supreme Court. On the same day, ZLHR filed a
contempt of court case against the State for continuing to
hold the detainees in violation of the order.
——————————————— ———–
Still No Resolution in Magistrate’s Court on December 29
——————————————— ———–
¶10. (SBU) The bail hearing resumed on Monday, December 29,
starting over six hours late. Detainees were forced to sit
in court without any food or water. In contrast to the
December 24 hearing, Mukoko and the others were finally
brought into the courtroom in leg shackles and handcuffs and
in standard prison clothing.
¶11. (U) In all, 19 of the detainees appeared on December 29
in five separate cases. Five individuals appeared in court
HARARE 00001145 003 OF 004
for the first time on charges of sabotage and terrorism for
allegedly planting bombs at police stations in Harare and at
a railway line in Norton. Thirteen others that are subject
of Omerjee’s December 24 order remain in prison and have not
yet been brought to court.
¶12. (C) Magistrate Guvamombe continued to defer judgment in
all cases, although he did say that the nine who claim they
were tortured (septel) can be seen by a doctor of their
choice, but only in the prison hospital. (NOTE: Since
attorneys have not had access to many of the detainees, not
all have had an opportunity to report torture. END NOTE.)
He deferred judgment on two cases until December 30, and the
seventeen others to December 31. All remain in State
custody. As of mid-day on December 30, the nine torture
victims have yet to be examined by physicians from the
Counseling Services Unit – their doctors of choice – as CSU
must wait for a court order allowing them to examine the
victims at the prison hospital.
——————————
MDC Officials Noticeably Absent
——————————
¶13. (SBU) On December 29, the courtroom was again extremely
crowded, with spectators sitting on the floor and standing in
the hallway outside the courtroom, struggling to hear.
Despite the intense interest in these cases, several civil
society leaders complained to us that none of the MDC
leadership was present in the courtroom on either December 24
or 29, and the MDC had not been taking their members food in
jail.
——-
COMMENT
——-
¶14. (C) The recent spate of abductions began on October 30.
On December 19, MDC president Morgan Tsvangirai issued an
ultimatum that if all abductees were not released or charged
in court by January 1, 2009, he would ask the MDC National
Council to pass a resolution to suspend SADC-sponsored
negotiations with the MDC. Whether or not the result of SADC
pressure on Mugabe, the current court cases would appear to
satisfy Tsvangirai’s precondition for MDC continued
participation in negotiations. (Although there were reports
of up to 40 abductees, neither the MDC nor civil society
representatives are able to say if there are individuals who
have not yet been located in prison, above and beyond the 13
located but not yet charged.)
¶15. (C) We expect these court cases to follow a typical
pattern of political harassment and intimidation.
Individuals are charged with serious crimes against the
State. After a series of bail hearings and defiance of court
orders to release the accused, the accused are released.
Charges remain pending, but with no credible evidence to
support them, they are ultimately dropped. In rare
instances, e.g., Tsvangirai’s treason trial in 2005, a trial
actually occurs and ends in acquittal.
¶16. (C) Although Zimbabwe’s once independent judicial system
has been seriously compromised, primarily through judges
receiving farms and other gifts from the government, a few
independent judges remain. Omerjee and Hungwe are two of
them. Omerjee refused to accept a farm. Hungwe did receive
a farm, but as a war veteran has felt the courage to
frequently rule against the government. He is also a regular
participant in events sponsored by ZLHR.
HARARE 00001145 004 OF 004
¶17. (C) The absence of MDC leadership in observing court
proceedings and in assisting its accused officials is
troubling. The contrast between high-level officials, such
as Tsvangirai, who have been leading a comfortable existence
outside Zimbabwe, and lower-level provincial officials now in
court after experiencing abduction and torture, is marked.
END COMMENT.
¶18. (U) Post will report septel the accounts of two of the
detainees alleging torture.
DHANANI
(22 VIEWS)
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