The court ordered a permanent stay in Jestina Mukoko’s prosecution. This no doubt brought to a partial end her ordeal that began on December 3 2008 when her freedom was temporarily taken away by the state —without any involvement of the courts — on allegations of terrorism.
Only a few believed she was so dangerous to the state as to warrant the kind of action that was taken. She was taken at daybreak by armed state actors who held her in secret locations where she was tortured in an attempt to force her to confirm that she was a danger to society.
Her persecutors knew as they have done before that the framing of her alleged misdeeds had to fit into what they believe their principal, President Robert Mugabe, needed to hear.
All that is and was required is to frame one as an economic or political saboteur to justify the activation of the state machinery to deprive one of freedom or rights enshrined in the constitution.
As expected, Mukoko was accused of being involved in a plot to topple Mugabe and such an allegation need not be investigated in contemporary Zimbabwe before the accused is arrested.
More importantly, such allegations need not be tested before an independent tribunal as required under the constitution of Zimbabwe.
She is one in many who have faced similar accusations. In fact, Deputy Agriculture minister-designate Roy Bennett faces similar allegations and notwithstanding the ruling of the Supreme Court, it is unlikely that the state, albeit in the framework of an inclusive government, will be persuaded to change its way of doing business.
When, for example, James Makamba was accused of externalisation, the laws were changed to deal with his unique circumstances where the state rushed to arrest him before even completing investigations.
Under the new law passed using state-of-emergency powers, popularly known as the Makamba Law, the state could detain suspects for extended periods without charging them before a court of law.
Makamba, Muderedi, Kuruneri and others were kept on remand for more than 48 hours.
In the case of Makamba, in order to justify the temporary deprivation of freedom the state had to reconstruct normal exchange control violations into serious economic crimes. This was evidently necessary to convince not only Mugabe that Zimbabwe’s crisis was a direct consequence of the indiscipline and alleged corruption in the private sector.
As a result, all that was required was to point a finger at a suspect and the state machinery could be used to demonstrate that draconian and unorthodox measures were what the country needed to lift itself up.
The Prevention of Corruption Act was accordingly amended to achieve that which was not intended by the constitution. The state could and can use this instrument to deprive temporarily and even permanently the rights, title and interest of citizens to property let alone freedom.
Once a person has been identified by the state with no assistance of the judiciary as culpable, the state has given its actors powers that can only be valid and enforced in an undemocratic constitutional order.
Mukoko, like many before her endured at a high emotional, physical and financial cost until the highest court in the land pronounced its opinion on a case that never was.
The mere fact that the executive branch of the state felt confident that their actions were justified must be a cause for concern.
No lower court could see through this abuse let alone the Attorney General’s office. To the extent that state actors enthusiastically prosecuted Mukoko using illegal methods to extract confessions, one can safely conclude that the system has been sufficiently compromised to accept and condone state abuse of citizens in the name of protecting a misplaced sense of sovereignty.
The lower courts could not come to the assistance of Mukoko as they have failed to do so in other cases of human rights abuses. What does this say about the health of Zimbabwe’s constitutional democracy?
It would be naïve for one to conclude that the end is near just because of the ruling. Nothing can be done to restore Mukoko to the position that she was in on the morning of December 3 last year. To the extent that her freedom was temporarily taken away as a consequence of an act of state, who should make good on the injury to Mukoko?
One would have expected the President to take action to restore the confidence of citizens in the state. Appointing a commission of inquiry to look at all cases of state abuses could be a good starting point. I do not believe that the judiciary is sufficiently equipped to handle these kinds of cases that clearly involve political meddling.
The complicity of the lower courts in giving life to the kind of abuse that has become customary in contemporary Zimbabwe is also an area that needs investigations because it should not be acceptable for one to be exposed to the treatment that Mukoko and others have been subjected to in the name of protecting national interest and sovereignty.
Makamba, like Kuruneri, languished in remand prison until the courts acquitted him. The journey to freedom was long and tortuous. Bennett is on the same journey, as are many others.
At least Mukoko’s journey is complete but the scars will remain forever and no doubt legitimate questions would need to be answered for her to get some closure to this. Who was behind her ordeal? How far up the state ladder was this action conceived and executed?
It may very well be the case that Mugabe is not fully in control of the state, suggesting that there may be a few in the system who know what their boss wants to hear.
After 29 years in power, Mugabe is yet to be convinced that he has acted improperly let alone that the state has failed its citizens. He has, as would be expected after that length of stay in office, been transformed into a prisoner.
There is no doubt that Mugabe was told that the MDC was up to mischief and the temporary stay of Prime Minister Morgan Tsvangirai in Botswana after the elections was aimed at consolidating a regime change strategy and plan.
Notwithstanding the inclusive government, Mugabe has been convinced that Zimbabwe is just too important to the West hence the media coverage and the regime change allegations are just too real. — ZimOnline.
- Mawere is a Zimbabwean-born South African businessman.
By Mutumwa Mawere