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Cablegate: Zim Supreme Court: Security Forces Violated Mukoko's

VZCZCXRO5973
OO RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHSB #0775/01 2711503
ZNR UUUUU ZZH
O 281503Z SEP 09
FM AMEMBASSY HARARE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4958
INFO RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHUJA/AMEMBASSY ABUJA 2384
RUEHAR/AMEMBASSY ACCRA 3058
RUEHDS/AMEMBASSY ADDIS ABABA 3171
RUEHRL/AMEMBASSY BERLIN 1600
RUEHBY/AMEMBASSY CANBERRA 2434
RUEHDK/AMEMBASSY DAKAR 2803
RUEHKM/AMEMBASSY KAMPALA 3219
RUEHNR/AMEMBASSY NAIROBI 5664
RUEHGV/USMISSION GENEVA 2351
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 02 HARARE 000775

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 EAID ASEC PGOV PREL ZI
SUBJECT: ZIM SUPREME COURT: SECURITY FORCES VIOLATED MUKOKO'S
CONSTITUTIONAL RIGHTS

REF: A. HARARE 524
B. HARARE 29

-------
SUMMARY
-------

1. (U) On September 28 the Chief Justice of the Supreme Court of
Zimbabwe issued a ruling on behalf of a unanimous court that the
constitutional rights of human rights activist Jestina Mukoko had
been violated in connection with her abduction, torture, and
detention by State agents last year. The Court further ruled that
her rights had been violated to such an extent as to warrant a
permanent stay of prosecution in the pending terrorism case against
her. Finally, the Court ruled that a related pending case against
eight others should also be stayed. The Court will issue a detailed
document describing the justification for the ruling in the future.
A court-ordered investigation into the circumstances of the
abductions of Mukoko and the others is pending, as are civil suits
for damages against police, security agents, and government
officials. END SUMMARY.

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Court Grants Reprieve
---------------------

2. (U) In an overflowing courtroom at the Supreme Court, Chief
Justice Godfrey Chidyausiku read the unanimous finding of the Court
that Jestina Mukoko's constitutional rights were violated to such an
extent that she is entitled to a permanent stay of the prosecution
against her. Specifically, the State violated her rights under
sections 13(1), 15(1) and 18(1) of the constitution. These sections
afford protection of the rights to liberty, to freedom from torture,
and to the full protection of the law. Mukoko's application to the
Supreme Court for a stay of proceedings based on her abduction in
December 2008 was heard in June this year (Ref A). During the June
hearing, her lawyers described her abduction and torture in detail
and the State admitted its agents had tortured Mukoko. The
underlying charge of terrorism against Mukoko was based on an
alleged plot to recruit insurgents to launch an armed insurgency
from Botswana.

3. (U) Today's Supreme Court ruling also applies to eight other
abductees who faced similar charges. Another group that was
abducted in the same time frame and is charged with a 2008 series of
bombings of police stations, railroad tracks, and bridges, was not
included in the September 28 ruling; that application is pending
separately with the Supreme Court. Lawyers tell us that unless the
State can somehow differentiate the cases, the "bombers" should also
receive the same stay of prosecution from the Supreme Court.

4. (U) With the stay of prosecution, police will return Mukoko and
the other defendants their passports, and they will no longer have
to report regularly to the police, as required by the bail granted
in February. The Court will issue a detailed written ruling at some
Qin February. The Court will issue a detailed written ruling at some
point in the future, but this may not happen for several months.

------------------------------
Still Pending: Prosecution for
Perpetrators and Civil Suits
------------------------------

5. (U) The abductees' court battles are not over yet, but they are
moving from defense to offense. The nagging issue of prosecution

HARARE 00000775 002 OF 002


against those who ordered and carried out the abductions will likely
now move to center stage. In January, a magistrate's court ordered
police to investigate the abductions, torture, and illegal
detentions, including the identities of all those responsible. At
the time, then-Minister of State Security, Didymus Mutasa, submitted
an affidavit attempting to block the investigation; the court
nonetheless ordered police to investigate and to file a report by
February. To date, the police have not done so. Lawyers believe
that, although today's ruling is a significant acknowledgement of
the State's illegal actions, justice will not fully be served until
those responsible for the abuses are held accountable.

6. (U) In addition, the abductees have already filed civil suits for
damages. Mukoko and other abductees separately sued two cabinet
ministers and the security agents who abducted them for a combined
USD 19.2 million in damages for unlawful abduction, detention and
deprivation of liberty. In an application filed at the High Court
on July 27, Mukoko claimed USD 220,000 from Defense Minister
Emmerson Mnangagwa and co-Ministers of Home Affairs Kembo Mohadi and
Giles Mutsekwa. Mukoko also sued State Security Minister Didymus
Mutasa, Attorney General Johannes Tomana, Police Commissioner
General Augustine Chihuri, Police Chief Superintendent Peter
Magwenzi, and Walter Tapfumaneyi, an agent of the State's Central
Intelligence Organization. The suit against Tomana alleges he
failed to meet his constitutional obligation to ensure the arrest
and prosecution of her alleged kidnappers. The High Court has not
yet set a date to hear Mukoko's application.

7. (SBU) In addition to the pending civil suits, earlier this month
some abductees sent a letter to the Attorney General's head of
litigation, Tawanda Zvekare, seeking assistance in returning the
property that was taken by the State security agents who abducted
them in 2008. For example, Gandhi Mudzingwa lost his truck, USD 310,
a cell phone, and shoes. Fidelis Chiramba lost three cameras,
shoes, and a belt. Freelance journalist Andrisson Manyere lost USD
4,500, a laptop computer, three cell phones, a digital camera, and
his passport. Mukoko jokingly told us that she was "lucky" because
since she was taken in the middle of the night, without even a
chance to get her glasses, the security agents didn't have anything
of hers to keep. Zvekare has not responded or acknowledged receipt
of the letter.

-------
COMMENT
-------

8. (SBU) The Supreme Court ruling in favor of Jestina Mukoko is a
welcome development. We expect that the "bombers" will soon receive
a similar ruling from the Court. The Mukoko judgment is a public
Qa similar ruling from the Court. The Mukoko judgment is a public
embarrassment to the State security apparatus and the ZANU-PF
officials who were in charge of it at the time, including the
police, intelligence officers, and Minister Mutasa. We expect that
ZANU-PF will spin it as demonstrating that rule of law exists in
Zimbabwe. We celebrate today's ruling, but we are all too aware
that the State could easily invent other charges against these
activists or obstruct the pending civil suits and investigations
against the State agents who carried out the abductions. END
COMMENT.

PETTERSON

© Scoop Media

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