Prosecutor told US official that Tomana was scared of Jestina Mukoko’s case

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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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

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