THE High Court will make a ruling on June 22 on an application by four MDC-T activists facing banditry charges for referral of their case to the Supreme Court to determine whether or not their constitutional rights were violated when they were allegedly abducted, tortured and kept incommunicado by the police and state spies.
Justice Tendai Uchena, sitting with Marco Mutambira and Alexander Mhandu as assessors, on Wednesday said he needed time to go through submissions made by the MDC-T activists â€“â€“ Concillia Chinanzvavana, Fidelis Chiramba, Violet Mupfuranhewe and Collen Mutemagau â€“â€“ and the state before making a ruling.
The quartet are part of 16 human rights and MDC-T activists who claimed that they were abducted by state security agents between October and December last year on allegations of banditry.
In the case of Chinanzvavana, Chiramba, Mupfuranhewe and Mutemagau, the state alleges that between July and October 30 2008 in Banket, the four acting in common purposes, unlawfully and intentionally recruited Tapera Mupfuranhewe and other MDC-T youths to undergo military training in Botswana â€œfor the purpose of committing acts of insurgency, banditry, sabotage or terrorismâ€ in the country.
In their application for referral of their case to the Supreme Court made by lawyer Alec Muchadehama, the four accused said the countryâ€™s highest court should determine whether or not their alleged abduction, torture and detention constituted unlawful deprivation of liberty, inhuman and degrading treatment and violation of the right to the protection of the law.
They also want the Supreme Court to determine whether or not that as victims of enforced disappearances they can lawfully be prosecuted, that the denial of access to their legal practitioners violated their rights to protection of the law and that the court has the power to direct the Commissioner-General of the police to institute an investigation into the alleged offences committed on them by state security agents and the police.
In the application the activists chronicle how they were allegedly abducted and tortured. They also name some of the police officers and state security agents who allegedly carried out the kidnappings.
In her founding affidavit, Chinanzvavana alleged that between October 30 and November 3 last year, the quartet was abducted by the police.
Chinanzvavana claimed that she and Mutemagau were kidnapped along the Harare-Chitungwiza Road on November 3 2008 when the vehicle they were travelling in was blocked in its path by five vehicles. She said they were driven to Harare Central Police Station in one of the vehicles. Â
â€œOne of the police officers who abducted us was one Detective Assistant Inspector Maria Phiri of the Law and Order department,â€ Chinanzvavanaâ€™s affidavit read. â€œShe together with her colleagues handed us over to Chief Superintendent Magwenzi.â€
She said she was â€œinformed and verily believeâ€ that Chiramba and Mupfuranhewe were â€œabductedâ€ from their homes by police officers who included Magwenzi, Detective Sergeant Mavinga, Phiri, Detective Chief Inspector Mpofu.
Chinanzvavana said she was advised that the police through officers from the Attorney-Generalâ€™s office were insisting during their initial appearances in court that they were not involved in their kidnapping.
â€œI contend however that the police and in particular Supt Magwenzi knows the other kidnappers as he participated in our kidnapping,â€ she alleged.
â€œIn the event that the police deny knowledge of who kidnapped us, then I aver that our abduction was widely reported such that the police should have promptly arrested our kidnappers when they handed us over to them and they would have facilitated our identification of those who handed us over by ensuring that the blindfolds were removed before those who handed us over had left.â€
Chinanzvavana said there was no doubt that the police were working â€œhand in handâ€ with security agents â€œlike the assistant director in the external branch of the Central Intelligence Organisation (CIO) Asher Walter Tapfumaneyi, before, during and after our abductionâ€.
She said she and Mutemagau were kept incommunicado for 49 days while Chiramba and Mupfuranhewe spent 53 days.
â€œDuring the period we were kept incommunicado, we were subjected to torture, inhuman and degrading treatment. We were assaulted. We were subjected to long hours of interrogation, in which we were being forced to confess to crimes we did not commit,â€ Chinanzvavana said.
In his affidavit, Mutemagau said there was no doubt that their â€œtraumatic experiences at the hands of the CIO and the police fit the clear definition of inhuman and degradingâ€ treatment.
â€œOur physical and bodily integrity was violated. Our abductors poured boiled water on the 2nd applicant (Chiramba)â€™s private parts,â€ Mutemagau claimed.
â€œThey mocked his genitals and made him pose nude in front of persons of the opposite sex. My wife, the 3rd applicant (Mupfuranhewe), had cold water poured onto her private parts. My two-year-old son, Nigel, who was with the mother, was beaten up for crying for food.â€
He claimed that there were a lot of abuses â€œsome of which cannot be repeated hereinâ€.
â€œShould all these be swept under the carpet only because the state and its organs chose to ignore them? Why should we be tried when we clearly are the victims?
Would it not be correct that the determination to try us is an attempt to give a semblance of legality to the horrendous crimes committed against us?â€ questioned Mutemagau.
But Michael Mugabe, representing the Attorney-Generalâ€™s office, said the application was frivolous and vexatious and meant to scuttle the trial proceedings of the four MDC-T activists.
Mugabe said the state had always submitted before the court that the four MDC-T activists were formally arrested by the police on December 22 2008 and prior to that were in the custody of state security agents.
â€œThe state has never made it a secret that prior to December 22 2008, the applicants were in the custody of the state security agents and that is the reason why we have â€¦an affidavit compiled by the then Minister of State for National Security Didymus Mutasa,â€ Mugabe said.
â€œHe (Mutasa) doesnâ€™t hide the fact that they (applicants) were in the hands of state security. There was no over detention by the police because the police arrested them on December 22 and they appeared in court on December 24 2008.â€
BY CONSTANTINE CHIMAKURE