Human rights lawyers in Harare have issued a blow-by-blow account detailing how the actions - and inaction - of named Zimbabwean judges, magistrates and state lawyers have facilitated the unlawful detention of activists who have allegedly been tortured.
In a statement issued in Harare on Tuesday, Zimbabwean Lawyers for Human Rights (ZLHR) traces the steps by which lawyers acting for detainees have tried but failed over a period of two weeks, first to get the government to obey a release order issued by a judge on Christmas Eve, then to secure proper medical treatment for the detainees.
The best-known of the 18 detainees involved is Jestina Mukoko, a former television newsreader and now director of the Zimbabwe Peace Project, who became the subject of an international campaign after disappearing from her home early in December.
In an earlier statement, ZLHR gave an account of how Judge Yunus Omerjee ruled on December 24 that certain detentions were unlawful, that some indviduals were being held in defiance of an earlier court order, and that named detainees should be either released or transferred to a private clinic for treatment.
In Tuesday's statement, ZLHR says that police refused to comply with Omerjee's order on the advice of Zimbabwe's director of public prosecution (criminal division), Florence Ziyambi, on the grounds of an appeal being filed.
Mukoko and some detainees were moved to Chikurubi maximumn security and women's prisons, and others were moved to police stations. Two abductees were removed to a police station despite court submissions by Ziyambi and Tawanda Zvekare of the attorney-general's office that they were not in police custody.
Detainees' lawyers were denied access to their clients at all the police stations they visited. At Chikurubi they were allowed access only to women and a two-year-old child who had been abducted with his parents on October 30 last year. However, they were denied the right to consult their clients in private, as is provided in Zimbabwe's constitution.
On December 29, detainees appeared in court again, where they heard they were to be charged with banditry, insurgency, sabotage or terrorism, some of them with bombing police stations and railway lines. The detainees' lawyers told the magistrate, Mishrod Givamombe, that their clients had been tortured and how they were blocked from getting access.
Givamombe postponed the case for a day, then ruled that the detainees should be returned to Chikurubi prison hospital, where they could be examined by medical practitioners of their choice. But the detainees - including the two-year-old - were returned to solitary confinement in the maximum security prison and taken to the hospital only after doctors were brought to see them. Prison officers refused to allow doctors to see their patients privately.
The medical consultations produced "medical affidavits... for all individuals," the ZLHR statement continued, "which confirm their statements of varying levels of torture during their abduction and incarceration at various detention centres in Harare."
On December 31, magistrate Guvamombe ordered the release of two detainees. But state counsel Ziyambi told him verbally she would appeal against his order. Despite the lack of any papers, Guvamombe told the clerk of the court not to prepare warrants of liberation. (By January 5, no appeal had been filed. When lawyers tried to make an application for the detainees' immediate release, magistrate Olivia Mariga refused to hear it.)
On the basis of the medical examinations of detainees on December 30, detainees' lawyers approached Judge Alphas Chitakunye in the High Court.
On the grounds that until Mukoko's court appearance on December 24, police had said her case was being treated as a kidnapping, Mukoko's lawyers argued to Chitakunye that the police should explain their failure to arrest the perpetrators of the kidnapping. But the state filed an affidavit from state security minister Didymus Mutasa saying state agents were responsible for the abductions. He said disclosure of the identities of the kidnappers, who were under his control, would prejudice national security.
On January 2, Judge Chitakunye accepted Mutasa's argument and refused to order disclosure of the identities of the kidnappers. However, he did order that Mukoko be taken to a private clinic for further examination.
On January 3, Chikurubi prison officials refused to act on the judge's order. Lawyers filed a new urgent court application seeking an order that all 18 detainees be sent to a private clinic for examination and treatment, on the basis that they had been tortured and suffered severe injuries.
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"Initially, a number of judges seem[ed] reluctant to handle the matter," the ZLHR statement said. It was eventually set down for hearing by Judge Anne-Marie Gowora on January 4.
However, at the time set down, lawyers were told Judge Gowora had refused to hear the matter on the basis that the medical affidavits filed with the application "are ones used in criminal cases, and not civil, so the papers are not in order..." Doctors were present at court to give oral testimony, "but the judge was not moved by this," according to the statement.
The lawyers filed fresh affidavits within an hour. When a clerk tried to contact Gowora, she had switched off her phone and was unreachable for the rest of the day. The following day, January 5, she indicated that she "considers she has finalized the matter" and referred the detainees' lawyers back to the judge president.
At 5pm on January 5, lawyers were told that the application was in the hands of Judge Lavender Makoni, who said she was perusing the papers and would advise the lawyers when the application would be heard.
