Zimbabwe Peace Project Director Jestina Mukoko was granted bail yesterday, and released from police custody. She was abducted from her home on 3 December 2008, was missing for three weeks, and was later found in police custody. Mukoko has been in hospital, recovering from the police brutality she experienced. For the past three weeks she has been shackled to her hospital bed and under police guard. She will stay in hospital recovering, but no longer under police guard.

Eight MDC activists, who were also abducted in December, have also been granted bail, but six have not been released, because they cannot meet the challenging bail conditions. To be released they must show title deeds to USD 20,000 worth of property – but they have no property.

Roy Bennett, who was granted bail last week, remains in custody after the state invoked Section 121 to keep him inside. More than 20 other activists who were abducted last year remain missing or in police custody.

A recent comment by Veritas raises an important question about the prolonged detention of Jestina Mukoko and dozens of other political detainees.

There has been talk over the past two weeks that political detainees and civil rights activists will only be released as part of a general amnesty being demanded by ZANU-PF and the security force commanders. This would certainly explain the delays that that have dogged efforts to get them freed. The political detainees whose release is the subject of purported amnesty negotiations were picked up while a national unity government was being negotiated. So far the police have not produced enough evidence to bring them to trial. This raises the question whether they were picked up deliberately to be used as hostages in a subsequent amnesty deal. This would entail a lopsided trade of a few seemingly innocent people picked up specially for the purpose against all those involved in perhaps up to 30 years of State organised or condoned violence.

There needs to be public debate on the subject of a general amnesty and civil society could take the lead in facilitating this process and in making sure it includes victims of State violence and their families. It is hoped that politicians will listen to these voices before making any deals. A general amnesty would not only affect the present detainees, but all people and the families who have been subjected to political violence – murders, torture, beatings, rape, property destroyed, forced evictions, etc. In addition to those who are recorded, there are estimated to be many hundreds over the last thirty years who have never been accounted for and there, are the dead who have never been identified and buried. Read more

Other recent documents that are worth reading on the question of transitional justice include Transitional justice in Zimbabwe: A pilot survey of the views of activists and victims by the Research and Advocacy Unit, and Pondai Bamu’s comment in Pambazuka this week: Transitional justice without transition in Zimbabwe?

Meanwhile, we’ve had a few more replies to our question about Roy Bennett:

• Roy Bennet should put pressure to have others released. – EM
• Roy should put pressure and refuse to be released! I really advocate that  he better refuse because if he accepts its like a father who runs away from a hungry lion leaving behind his weak, defenseless son to be feasted instead of fighting the lion together. Remember that even the bible says two are better than one. – HC
• I think Roy must stick to his guns. For he will never enjoy freedom with the others still detained, if he has a conscience. – CM

After 12 days in detention, Deputy Minister of Agriculture designate Roy Bennett was granted bail on Tuesday. But he remains in custody as lawyers for the state are appealing his bail order. We just asked our SMS subscribers whether Bennett should put pressure on the state by refusing to be released while Jestina Mukoko and others languish in jail. We’ve had two replies so far, with two opposing points of view:

• roy shld if the wil pwr is there stay in fo others, this is a difficult decision but worth giving a try
• why do u want to use him as a bargaining chip?

Apparently Bennett previously refused to be released in exchange for blanket amnesty for human rights abuses since 2000. Principled position, or bargaining chip? If you were Bennett, could you resist the promise of freedom in solidarity with others in the struggle? info [at] kubatana [dot] org [dot] zw or +263 912 452201.

When we told our SMS subscribers that the MDC had agreed to join the inclusive government, the response was largely relief. People sent us messages saying things like “Thank God,” “at last,” and “This is a good move.”

But three weeks into the new government, the cracks are beginning to show. The arrest and ongoing detention of Roy Bennett, Deputy Minister of Agriculture designate, is particularly worrying for many of our subscribers. Here are some of their responses to the news of his arrest:

As head of government Tsvangirai should enlighten us on the circumstances leading to Bennett’s arrest. Has he been criminal or an enemy of government? Why include him in cabinet when he has arrest warrant? Moreover I think there was a clause telling us to forget the past and open a new chapter in their speeches. If we need to prosecute for past crimes then the whole Zanu PF hierarchy should be arrested.

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Bottom line. Bob has to go. Sorry

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This is totally unacceptable. Let us walk out of this farce.

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What charges are they arresting Bennett? Otherwise this inclusive government is a bluff. Tsvangirai might have been corrupted and sold out. The much needed rescue package is gonna not materialise. So the set up is a failure. We still at zero. If there is no selling on Tsvangirai ‘s part let him be the first protestant so that we have direction otherwise we need to further study the set up before we conclude anything.

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Zanu is undermining the very fragile Political Agreement by arresting a Dep. Minister nominee. They always want to complicate situations. They should release him.

Jestina Mukoko has been in police custody for two months. On Wednesday, High Court Justice Chitakunye denied her bail ostensibly because she “had yet to be advised by a court on her charges.”

Now, I don’t have any legal training, but this struck me as patently absurd. And surely illegal. Rule of law? What rule of law.

So I asked a lawyer friend for his thoughts, and for his sense of whether the Justice had any legal backing for his decision. He referenced the Criminal Procedure and Evidence Act, and helped to interpret it a bit:

117 Entitlement to bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

Now the crucial words here are “at any time” and “on a charge”. The words on a charge are generally accepted here to mean not that a formal charge has been put (as the judges seemed to hold) but on allegations of having committed an offence or reasonable suspicion thereof. If, however, the person is held without there being a suspicion or allegations of having committed and offence then it is correct to state that the person cannot apply for bail. . . . The judge should order the person’s release without bail as the detention is then unlawful in terms of the Constitution, the name for the court action being the interdictum de homine libero exhibendo, more popularly known as habeas corpus in Anglo jurisdictions.

The judge presumably claimed ignorance of the meaning of “on a charge” in relation to bail applications but more importantly over looked the provisions of 117.

117A Application for bail, bail proceedings and record thereof

(1) Subject to the proviso to section 116, an accused person may at any time apply verbally or in writing to the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate.

Note this section does not mention on a charge. Furthermore the section is ambiguous. It is not clear whether the phrase “before whom he or she is appearing” applies to the phrase “application in writing to a judge or magistrate”. If it does not – and my opinion is that it does not – then a detained person can make an application for bail “at any time” even before he or she has appeared in court, let alone whether any formal charge has been put.

Also aside from the technicalities of the law common sense tells even a lay person that the state cannot scupper any bail application by the simple expedient of not putting formal charges to an accused. When an accused appears in court, the state has to tell the court why the accused is there . . . this counts as appearing on a charge. Often charges are complicated and it takes some time to draw up the formal charge . . . usually only put to an accused when the trial starts.

The whole point of having time limits within which a person must be taken to court is so that a judge can speedily consider the lawfulness of the arrest and determine the question of bail so that the innocent are not held a second longer in custody than is necessary. The approach of the judge overlooks this fundamental principal of our criminal procedure.

All bail issues should be deal with as a matter of extreme expedition. I understand from another lawyer that although the courts hear applications for habeas corpus as a matter of urgency, when the police ignore these orders the subsequent complaint for contempt of court is not. This makes a mockery of the entire system.

An SW Radio Africa headline caught my eye the other day: MDC say they will not be held ‘prisoner’ in unity deal.

The Tsvangirai MDC has moved to reassure sceptical supporters that it will not be held ‘prisoner’ in a government of national unity with ZANU PF. Speaking to Newsreel on Monday, party spokesman Nelson Chamisa said if for any reason the deal failed to work they would have no hesitation in walking out.

Well. The MDC may not be held prisoner. But Zimbabwe Peace Project Director Jestina Mukoko certainly is. She was abducted over two months ago, on 3 December 2008. She was missing for three weeks, with the police claiming not to know where she was. She was found 23 December – in police custody! Since then, she has been accused of “banditry,” and has had a series of court appearances, none of which seem to be getting her any closer to freedom.

Today, High Court Justice Alphas Chitakunye rejected her latest application for bail, saying that he couldn’t grant bail because Jestina “had yet to be advised by a court on her charges.”

So this woman, who was arrested after the Global Political Agreement was signed now won’t be released, after the inclusive government has been finalised? You’ve had this woman, and her six co-accused, for two months and you haven’t even charged them yet?

Surely the issue of these detainees is a litmus test for this new government. Write to MDC-M and MDC-T and remind them that whilst pro-democracy activists remain detained and disappeared, none of us are free, and that the spirit of the inclusive government is flawed. And if you hear back from them, let us know what they say!