State should work to restore credibility

A court repo

rt in the Herald last Thursday provided instructive reading.

The High Court denied bail to two suspects allegedly involved in the murder of MDC activists Tichaona Chiminya and Talent Mabika during the 2000 election campaign in Buhera.

The Zimbabwe Independent has repeatedly drawn attention to this case as symptomatic of the lawlessness that has previously gone unaddressed across the land.

Justice Charles Hungwe dismissed an application for bail by Webster Gwama and Morris Kainos Zimunya, alias Kitsiyatota. He said granting the two bail would jeopardise the administration of justice.

He deplored the delay in bringing the accused to justice when they were known as the prime suspects in the murder of the two opposition activists.

“They were highly publicised both in and out of Zimbabwe,” Justice Hungwe was reported as saying in his ruling. “They were the basis upon which international and Western opinion labelled the election violence-ridden and therefore not free and fair. Despite the high publicity of these murders no arrests were made although the culprits were known.”

Justice Hungwe asked why the suspects had not been prosecuted earlier despite being cited in the election petition for the Buhera North constituency.

“The criminal justice system remains compromised when police fail to bring known murderers to justice,” he said.

Justice Hungwe said the police had a constitutional duty to act in such cases. The case had cost the police its credibility and their inaction was a matter of public concern, he said. The state’s admission that there had been political interference with their work was “a step in the right direction”.

Chief law officer Stephen Musona argued that the two were likely to attempt to evade trial now they had lost the political protection they used to enjoy.

“The wind of change is blowing and the untouchables are now getting arrested in Zimbabwe,” he was reported as saying.

According to the report, the two were said to have connived with two others, Joseph Mwale of the Central Intelligence Organisation and America Mudzvinyiriri, to commit the crime.

Mudzvinyiriri had since died while Mwale was “still at large”.

This case raises more questions than it answers. What was the nature of the protection given to the alleged killers? Who shielded them from the law? At what level was that protection afforded?

These questions need to be answered. As Justice Hungwe pointed out, the case has cost the police their credibility. The same could be said of the Cain Nkala case where Justice Sandra Mungwira said state witnesses “conducted themselves in a shameless fashion and displayed utter contempt for the administration of justice”.

The police investigations  diary was “a work of fiction”, she said.

The Minister of Justice now needs to set up an enquiry into how, in the case heard last week, the ends of justice were defeated, or at least thwarted, for four years. Why has the state media been so shrill in insisting that there is no lawlessness in Zimbabwe when a case such as this takes four years to reach court because the accused had a form of immunity?

And where is Joseph Mwale? How is he able to remain “on the run” when he is employed by the country’s intelligence service?

This week, in a case involving the Standard which is being charged under Posa, the state alleged that the paper, among other things, implied that the government was “covering up evidence”.

We do not know who was providing political protection to the two accused in the Buhera case. But their alleged linkage to a CIO officer who appeared to act with impunity would suggest there was an organised attempt to prevent evidence of a particularly savage murder getting to court.

Our criminal justice system, if it is to remain credible, cannot entertain a rush to prosecute newspapers on charges of “provoking public disorder” while other cases take four years to see the light of day because the perpetrators enjoy political protection.

Musona’s claim that “the wind of change is blowing and the untouchables are now getting arrested” owes more to hope than facts. Only two “untouchables” have been arrested so far. Another is “on the run”.

Those who abducted and tortured Standard journalists Mark Chavunduka and Ray Choto remain at large despite a court-ordered police investigation into their treatment. Some of those allegedly involved in the killing of commercial farmers have been arrested and then released.

Restoration of the rule of law in Zimbabwe has been only partial. Court orders protecting individuals from interference on their properties have been routinely ignored. And now the nationalisation of all farmland will circumvent the very court-based procedures that government has itself put in place to provide a trace of fairness to what is essentially an arbitrary process. It will also of course, by discouraging investment in agriculture, prevent a modern farming system from evolving.

There has been much hype recently regarding the prospects of economic recovery. But there can be no grounds for expectations of recovery so long as the criminal and civil justice system only functions when the state allows it to. That is the very opposite of the rule of law. But it is what we have at present.

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