Detainees remain in jail despite court orders

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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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)