A HIGH Court judge has said the police have failed to absolve themselves in the alleged abduction of MDC-T activists between October and December last year.
In a written judgment released on Tuesday referring the case of four MDC-T activists to the Supreme Court, Justice Tendai Uchena said evidence led during the hearing did not absolve the police from the alleged abductions.
MDC-T activists, Concillia Chinanzvavana, Fidelis Chiramba, Violet Mupfuranhewe and Collen Mutemagau, facing charges of recruiting youths to undergo military training in Botswana for purposes of committing banditry in Zimbabwe, applied for referral of their case to the Supreme Court on the strength that their abductions and torture violated their constitutional rights.
The state, however, argued that the application was â€œfrivolous and vexatiousâ€ and that the MDC-T activists were never abducted by the police between October 31 and December 22 last year, but were in custody of state security agents.
In his ruling, Justice Uchena said the Attorney-General (AG) â€” the respondent â€” failed to deny the allegations raised during the hearing by the activists.
He said the AGâ€™s response was â€œsimply that the applicants were from October 31 2008 to December 22 2008 in the custody of state security agentsâ€.
â€œThat response attempts to distance the police from the alleged wrong-doing, but does not succeed because the police are alleged to have been involved from the time the applicants were abducted,â€ Uchena said.
â€œThe second (Chiramba) and third (Mupfuranhewe) applicants were kept in police custody for a long time before they were taken to a house where they were kept until December 22 2008. The response does not absolve the whole state law-enforcements agents.â€
Justice Uchena said an exhibit produced in court on police investigations did not absolve the police as it gives the impression that they dealt with the applicants from December 22 2008 onwards without specifically denying earlier involvement as alleged by the activists.
He said: â€œEven Chief Superintendent Magwenziâ€™s own affidavit does not respond to what is alleged to have happened before December 22 2008. The respondentsâ€™ response leaves the allegation of detention beyond 96 hours unchallenged. â€Â Â Â Â Â Â Â Â
Justice Uchena said the applicants were held for more than one and a half months without being taken to court and if that is proved it would be in contravention of provisions of the countryâ€™s constitution.
â€œIt cannot therefore be held that the applicantsâ€™ application is frivolous and vexatious,â€ he ruled.
The state argued that besides referring the matter to the Supreme Court, there were other remedies the MDC-T activists could take for their alleged deprivation of liberty â€” such as suing for damages.
In regard to the question of physical mistreatment in which the activists alleged that they were assaulted and treated in an inhuman and degrading manner, Justice Uchena also referred that question to the Supreme Court.
The applicants also sought referral to of their case to the constitutional court on the grounds that they were denied the protection of the law and access to their legal practitioners.
They also want the Supreme Court to consider whether or not they should be prosecuted given that they were before the court illegally.
They alleged that the police knew that they were missing and that Justices Charles Hungwe and Yunus Omerjee had ordered their release.
â€œIt is not in dispute that the applicantsâ€™ enforced disappearance was known to the police. The police were party to the proceedings before Justice Hungwe where the issue was the disappearance of the applicants and others. They at first denied knowledge but conceded after the applicantsâ€™ legal practitioners had proved that some of the applicants had been detained at various police stations,â€ Justice Uchena said.
â€œThe applicantsâ€™ access to legal practitioners is a constitutional right which ensures the protection of an accused personâ€™s right at the time of his or her arrest and thereafter.â€
He said the allegations made against the law-enforcement agents were very serious.
â€œIt would be unacceptable for such serious allegations to be swept under the carpet. The request for an investigation is in my view not frivolous and vexatious. Its seriousness is demonstrated by the respondent and the police having considered it necessary when they investigated the allegations,â€ Justice Uchena added.
The judge making reference to provisions of the Criminal Procedure and Evidence Act (CPE Act) lambasted the detention of the activists saying it far exceeds the period allowed under Zimbabwean law.
He said: â€œThe CPE Act provided for the detention of an accused person in police custody for not more than 48 hours without a warrant of further detention and not more than 96 hours if a warrant of further detention was issued. Even if one had been issued, the applicantsâ€™ detention far exceeded the period permissible under our law.
â€œThe applicantsâ€™ unchallenged allegations merit the attention of the Supreme Court. They cannot be held to be frivolous and vexatious. I would in the circumstance refer this question (unlawful deprivation of liberty) to the Supreme Court.â€
The applicants in their affidavits alleged that they were kidnapped between October 30 and November 3 2008. They further alleged that they were thereafter kept by their abductors and associates until December 22 2008.
Chiramba in his affidavit alleged that he was on the night of October 31 2008 arrested by heavily armed man at his house in Banket who took him to Rhodesville Police Station, Harare, and was later transferred to Borrowdale, Marlborough, Highlands, Avondale and Hatfield police stations between the day of his arrest and November 4 the same year.
On November 4, he was told he was innocent and would be taken home before a warned and cautioned statement was recorded.
Chiramba alleged that as they got near Mount Hampden another vehicle came and signalled the one he was in to stop.
He said he was dragged out of the car which was supposed to be taking him to Banket and thrown into the motor vehicle that had signalled them to stop and immediately blindfolded and driven back to Harare where he was kept in a carpeted house.
There he alleges he was assaulted all over his body.
â€œHe was put in a deep freezer where he felt close to death. A few minutes after being removed from the deep freezer he was ordered to remove all his clothes, and hot water was poured onto his genitals causing him excruciating pain.
â€œHe was also asked to walk stark naked in front of women who were also in captivity. His abductors looked on laughing and mocking his body make- up,â€ wrote Uchena in the judgment.
Mupfuranhewe in her affidavit narrates that on October 31 2008 she was taken from her Banket home by men who produced their police identification cards and said they were police officers from Chinhoyi.
The police officers agreed that her two-year-old son who was crying for her could go with her to CID Chinhoyi where they were taking her.
Mupfuranhewe was kept in police cells in Chinhoyi where she was asked about the whereabouts of her husband, to which she professed ignorance.
She was later transferred to Mabelreign police station and alleged that she heard men who had brought her telling police officers on duty not to give her food.
She was transferred to Borrowdale police station where six men interrogated her and later taken back to Banket to show her interrogators the houses of other MDC-T members.
During her detention she alleges that she was given rules regarding her child, that he was only going to be allowed to go to the toilet and was not to cry for food.
â€œOn the third day of their arrival at this house she was ordered into a tub of very hot water for failing to participate in a quiz. She was burnt on the buttocks. One day she and another participant in this application were accused of spoiling the toilet and they spent the whole day having ice cold water poured into their pants,â€ read Justice Uchenaâ€™s ruling.
BY WONGAI ZHANGAZHA