THE acquittal of Movement for Democrat
ic Change (MDC) suspects alleged to have murdered Bulawayo war veterans leader Cain Nkala has left egg on government’s face and a key question still unanswered: who killed Nkala?
High Court Judge Justice Sandra Mungwira last week granted the defence application for discharge after analysing the submissions presented in court by both the state and defence. She concluded that the state had not put up a solid case against the MDC activists for which the court could convict, and ruled against placing them on their defence.
The trial, one of the longest, opened in January 2003 and the state claimed it was receiving new evidence up until last week. Nkala was allegedly abducted from his Magwegwe home on November 5 2001 and subsequently murdered.His body was exhumed from a shallow grave at Norwood Farm near Solusi University about 40 kilometres south west of Bulawayo on November 13 2001.
MDC MP, Fletcher Dulini Ncube (Lobengula-Magwegwe), Sonny Masera, the MDC director of security, and party activists Army Zulu, Kethani Sibanda, Remember Moyo and Sazini Mpofu were accused of murdering the former freedom fighter.
The court heard the MDC members were tortured and threatened with death while in police custody. All the suspects denied charges of involvement in the murder of Nkala, including those who apparently made confession statements under duress.
MDC legal secretary David Coltart last week challenged acting Attorney-General Bharat Patel to launch a full investigation to establish who Nkala’s real killers were.
“The judgement brings us back to the question: who killed Cain Nkala?” Coltart said. “The judgement is a serious indictment of Zanu PF. The acting Attorney-General should immediately investigate the murder of Nkala. And I suggest he starts closer to home.”
Coltart said the acquittal was a vindication of the MDC’s consistent position that it was not behind the murder of Nkala. He said the murderer was out there roaming the streets scot-free.
The acquittal has exposed government’s growing penchant for relying on evidence extracted under duress. It also exposes the rampant torture by police of crime suspects while in custody.
Sibanda, Moyo and Mpofu made detailed statements alleging they were coerced by the police to make statements to implicate themselves and/or others in the murders with which they were charged.
They said in their statements they were not informed of the reasons for their arrest or of their rights.Sibanda stated before a court of law that he was assaulted at Gweru Police Station after his arrest on November 11. The assaults included kicks, slaps, punches, and verbal threats. He stated further that at one stage on November 12, a senior investigating officer pulled out a gun and threatened to shoot him. The police officers pressured Sibanda to falsely implicate himself and other people in certain crimes, the defence argued.
Mpofu was arrested late on November 12. In front of eyewitnesses, he was allegedly slapped, punched, kicked and assaulted with a gun butt by the arresting officers. A friend present at the time of the arrest was also assaulted. Mpofu was taken to his home, which was searched, and further assaulted with a gun. The police then took him to Nkulumane police station and allegedly continued to assault him en route. Mpofu stated that he was stamped upon and trodden upon and told to make false confessions and implicate certain individuals. There is medical evidence corroborating the allegations of torture and ill-treatment.
On November 13 2001 statements made by Sibanda and Mpofu were apparently broadcast on ZTV in which they implicated themselves and others in the abduction and subsequent murder of Nkala. They however later retracted the “confessions”, stating that the statements were made under duress.
Moyo was arrested in Gweru on November 11, together with Sibanda. Moyo says the police stopped at a lay-by on their way to Bulawayo and assaulted him. One senior officer allegedly kicked him in the genitals. They struck him on the head and ribs, placed him in leg-irons, and suspended him by his feet.
He was held by the head under the wheel of the vehicle, which caused injuries to his jaw.
According to his account, he was then taken to Mbembesi police station where he was held for three nights handcuffed, chained to a ring in the cell, and denied blankets. On three successive nights, police officers allegedly assaulted him. He stated in his evidence that the police officers repeatedly told him to implicate certain individuals. On November 15 the officers took him to the CID Law and Order office where a senior police officer allegedly told him what to say in a statement.
Sibanda and Moyo both affirmed their claims of torture and ill-treatment when they appeared before the High Court on November 27. They pleaded innocent of the murder of Nkala. The High Court ordered a medical examination to verify their injuries.Zulu told his lawyer that police threatened to ‘’make him disappear’’ to force him to make a statement incriminating himself. During interrogation, Zulu alleged he was kicked around and knocked against the wall by police officers.
Arguing in a trial-within-a-trial, defence lawyers stated that the evidence that had been presented by the state had been extracted under duress and was therefore not admissible. Justice Mungwira agreed with the defence and sharply criticised the police who gave evidence as state witnesses.
“The witnesses (police) conducted themselves in a shameless fashion and displayed utter contempt for the due administration of justice to the extent that they were prepared to indulge in what can only be described as works of fiction as is especially illustrated by the state of (the) investigations diary,” Justice Mungwira said in her 60-page judgement.
The accused were denied contact with their families, friends and legal representatives. The government in the meantime used the pre-trial publicity to insinuate the guilt of the accused who had the legal right to be presumed innocent until proven guilty. There were highly publicised statements by senior government officials that already prejudged the accused, as well as by the broadcast “confessions” which likewise alleged guilt.
When Nkala’s body was found on November 12, the state-controlled ZTV immediately broadcast the confessions of Sibanda and Mpofu. Later, at the funeral of Nkala on November 17, President Robert Mugabe repeated accusations against the MDC, calling the killing a ‘’terrorist provocation’’ by the opposition party.
Subsequent statements by Mugabe, the then Minister of Home Affairs John Nkomo and Police Commissioner Augustine Chihuri holding the MDC and its members responsible for Nkala’s murder and describing them as ‘’terrorists’’, were also widely quoted in the media.
The statements created a public perception that placed in jeopardy any prospect of a fair trial for the accused. Instead of the state establishing their guilt beyond all reasonable doubt, the accused were given a burden to establish their innocence, contrary to international standards of fairness.