A State prosecutor in the case of human rights activist Jestina Mukoko is said to have told a United States embassy official that attorney-general Johannes Tomana and the government’s chief prosecutor Florence Ziyambi were scared of Mukoko’s case.
According to a diplomatic cable released by Wikileaks, the prosecutor Fatima Maxwell, told Mukoko’s lawyers that she too did not even want to be there to present the State’s case.
Mukoko was appearing in the Supreme Court where she was arguing that her abduction, torture, and illegal detention in December 2008 constituted such a grave violation of her constitutional rights that the court should permanently stay the prosecution’s case against her.
Mukoko and other activists had been arrested for allegedly conspiring to mount an armed insurgency against the government after the 2008 elections.
She was held in custody from 3 to 22 December 2008 and was allegedly tortured into confessing that she and other activists had recruited insurgents to launch an armed rebellion from Botswana.
Full cable:
Viewing cable 09HARARE524, STATE ADMITS TORTURING MUKOKO
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Reference ID |
Created |
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Classification |
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VZCZCXRO4083
OO RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHSB #0524/01 1801228
ZNR UUUUU ZZH
O 291228Z JUN 09 ZUI NUM SVCS H/W ZDK
FM AMEMBASSY HARARE
TO RUEHC/SECSTATE WASHDC 4653
RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHUJA/AMEMBASSY ABUJA 2333
RUEHAR/AMEMBASSY ACCRA 2913
RUEHDS/AMEMBASSY ADDIS ABABA 3032
RUEHRL/AMEMBASSY BERLIN 1464
RUEHBY/AMEMBASSY CANBERRA 2295
RUEHDK/AMEMBASSY DAKAR 2662
RUEHKM/AMEMBASSY KAMPALA 3080
RUEHNR/AMEMBASSY NAIROBI 5523
RUEHGV/USMISSION GENEVA 2208
RUZEHAA/CDR USEUCOM INTEL VAIHINGEN GE
RUEAIIA/CIA WASHDC
RUCPDOC/DEPT OF COMMERCE WASHDC
RUEHC/DEPT OF LABOR WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RHEFDIA/DIA WASHDC
RUZEJAA/JAC MOLESWORTH RAF MOLESWORTH UK
RUEKJCS/JOINT STAFF WASHDC
RHEHAAA/NSC WASHDC
UNCLAS SECTION 01 OF 03 HARARE 000524
SENSITIVE
SIPDIS
AF/S FOR B. WALCH
DRL FOR N. WILETT
ADDIS ABABA FOR USAU
ADDIS ABABA FOR ACSS
NSC FOR SENIOR AFRICA DIRECTOR M. GAVIN
STATE PASS TO USAID FOR L.DOBBINS AND E.LOKEN
E.O. 12958: N/A
TAGS: PHUM ASEC KDEM PGOV PREL ZI
SUBJECT: STATE ADMITS TORTURING MUKOKO
REF: 08 HARARE 1147
HARARE 00000524 001.3 OF 003
——-
SUMMARY
——-
¶1. (SBU) On June 24, the Supreme Court of Zimbabwe heard a landmark
case brought by human rights activist Jestina Mukoko, arguing that
her abduction, torture, and illegal detention in December 2008
constituted such a grave violation of her constitutional rights that
the court should permanently stay the prosecution’s case against her
for allegedly conspiring to mount an armed insurgency against the
government in the post-election period last year. In the court
room, crowded with onlookers including numerous diplomats,
journalists, and leaders of civil society, the State argued that
although her rights were violated, there are other remedies
available (i.e. civil law suits). Shockingly, the prosecutor
admitted that Mukoko had been illegally abducted, tortured, and
detained during a horrific three week period in December 2008. END
SUMMARY.
————————
Mukoko’s Rights Violated
————————
¶2. (U) In nearly two hours of argument, Mukoko’s lawyer,
distinguished South African advocate Jeremy Gauntlet, detailed her
abduction and the degrading treatment and torture she experienced in
illegal State custody between December 3 and 22, 2008. Mukoko, a
Zimbabwe Peace Project (ZPP) colleague, and other MDC activists are
accused of recruiting insurgents to launch an armed rebellion from
Botswana. Mukoko cried silently at times as Gauntlet read from
Mukoko’s written affidavit (reftel), describing how State agents
beat her on the soles of her feet and forced her to kneel for hours
on sharp gravel. Gauntlet acknowledged that the State could only
permanently stay prosecution in “exceptional” cases and said,
ironically, he was “not confident” that Mukoko’s case of abduction
and human rights violations was exceptional in Zimbabwe. He laid
out the three main questions for the court to decide: (1) What are
the facts and what evidence has the State presented against Mukoko?
(2) Do the facts establish a violation of Mukoko’s rights? and (3)
What does the State do when evidence is brought forth with “dirty
hands”? He described Mukoko’s case as a “textbook” example of a
case in which the court hould stay the prosecution because of how
consistently and severely her rights were violated.
¶3. (U) The evidence against Mukoko, importantly, is based on a
confession she made while illegally detained and after being
tortured by State security agents between December 3 and 22, 2008.
Others who face similar banditry charges were also abducted and
tortured to confess to various roles in the plot. To support his
argument, Gauntlet presented affidavits previously submitted by
Minister of State Security, Didymus Mutasa, and police
QMinister of State Security, Didymus Mutasa, and police
superintendent Peter Magwenzi (Magwenzi received Mukoko and over a
dozen other blindfolded abductees from State security agents into
his custody on December 22). Both Mutasa and Magwenzi acknowledged
that Mukoko and others were in the custody of State agents prior to
being turned over to police. Gauntlet pointed out that the State
has never contested the veracity of Mukoko’s claims nor sought to
investigate the actions of those officers who abducted or tortured
her. Indeed, Mutasa’s own statement acknowledged that he was aware
that State agents had been authorized to act without any
identifiable power under Zimbabwe’s constitution or laws.
¶4. (U) Gauntlet concluded by identifying nine specific violations of
HARARE 00000524 002.5 OF 003
Mukoko’s constitutional and human rights:
— Her abduction by State agents on December 3, 2008;
— The degrading and inhumane treatments she was subjected to when
removed from her home (not allowed to change from her dressing gown
or to retrieve her glasses; in the vehicle her face was forced in
the lap of one of her male abductors);
— Her unlawful detention between December 3 and 22, 2008;
— Her unlawful solitary confinement during that period;
— Her torture in detention during that period;
— The death threats her abductors used to taunt and intimidate her
during that period;
— Her unlawful deprivation of medical care, even with a court order
after she was taken to Chikurubi prison;
— Her unlawful deprivation of legal practitioners, even after she
was taken to the police on December 22, 2008; and
— The “cumulative connivance” of police, unnamed State agents who
abducted and tortured her, the Minister of State Security (Mutasa),
and the Attorney General who consciously sought to undermine her
dignity.
————————————-
Prosecutor: Tomana’s Sacrificial Lamb
————————————-
¶5. (SBU) State prosecutor Fatima Maxwell, the head of the civil law
division in the AG’s office, appeared extraordinarily ill prepared
and did not even attempt to dispute the facts of Mukoko’s abduction
in her very short 20 minute counter argument. Maxwell weakly argued
that an affidavit submitted by Minister Mutasa–that explicitly
states that Jestina was in the custody of State security
agents–shouldn’t be admitted because the case it was part of had
been withdrawn. She then pointed out two minor discrepancies in
Mukoko’s oral and written testimony. (Was her head forced down on
the lap of one of her abductors or on the seat of the car? And did
she see a sign before or after they blindfolded her?) In Mukoko’s
35 pages of oral testimony, the State could only identify these two
minor differences with her written testimony. Notably, Maxwell did
not dispute any of the facts presented of Mukoko’s abduction or
torture nor of the State’s efforts to protect and defend the actors
involved.
¶6. (SBU) As he questioned Maxwell, Chief Justice Chidyasiku –who
is viewed as compromised and a defender of the ZANU-PF regime —
identified various technical points in the case that the AG’s office
could use to strengthen its case. Nevertheless, he described the
details of Mukoko’s abduction as “an exceptional violation” of her
rights. The State prosecutor agreed that Mukoko’s rights had been
violated and that her detention between December 3 and 22 was
unlawful.
———–
AG “Scared”
———–
¶7. (SBU) Before presenting the State’s case, Maxwell confided to
Q7. (SBU) Before presenting the State’s case, Maxwell confided to
our political assistant that AG Johannes Tomana and the government’s
chief prosecutor Florence Ziyambi were “scared” of the case.
Maxwell also told Mukoko’s lawyers that she didn’t want to be there
to present the State’s case. Before the hearing, most lawyers
expected that either Tomana or Ziyambi would present the State’s
case. After the hearing, human rights lawyers described Maxwell’s
timid performance as “a joke.” Mukoko told us that even she felt
sorry for Maxwell.
HARARE 00000524 003.3 OF 003
————–
Ruling Delayed
————–
¶8. (SBU) As was expected, the Supreme Court is reserving judgment
and the ruling could take two or three months. Mukoko’s trial in
the High Court is scheduled to begin on July 20, and the Supreme
Court will likely take some action before then, if only to delay the
trial while the ruling is pending. While this case only dealt
explicitly with Mukoko, the other abductees facing similar charges
have referred similar cases to the Supreme Court. Lawyers hope that
this case will serve as precedent.
——-
COMMENT
——-
¶9. (SBU) Regardless of the final ruling, the Supreme Court hearing
is significant because, finally, government officials have admitted
that Mukoko was illegally abducted and tortured by State agents.
Furthermore, the State has done absolutely nothing to investigate
the actions of the State agents who abducted and tortured her. As
we continue to push for rule of law and improved human rights
conditions, the international community can now cite these
admissions as incontrovertible evidence of the government’s
wrongdoing and the impunity with which State agents continue to
violate human rights. The government knows who ordered and carried
out the abductions, torture, and forced confessions–if only they
will hold the perpetrators accountable. END COMMENT.
MCGEE
(48 VIEWS)
