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State concedes Mukoko's detention was illegal

(MISA/IFEX) - Former news reader with the Zimbabwe Broadcasting Corporation (ZBC) and director of the Zimbabwe Peace Project, Jestina Mukoko, on 25 June 2009 appeared before the full bench of the Supreme Court sitting as a Constitutional Court challenging the infringement of her constitutional rights to liberty, full protection of the law and right to freedom from torture. The full bench comprised Chief Justice Godfrey Chidyausiku, Justice Luke Malaba, Justice Wilson Sandura, and Justice Vernanda Ziyambi.

Mukoko, who is being charged with banditry, sabotage and terrorism, was granted bail after 92 days of detention following her abduction from her home in Norton in the outskirts of Harare on 3 December 2008. Her whereabouts were unknown until her subsequent appearance in court on 24 December. Thereafter, Mukoko waged numerous court battles for her freedom until her subsequent bail was approved on 6 May 2009.

State prosecutors conceded in court that security agents had abducted and illegally detained Mukoko, who is asking the Supreme Court to stop her prosecution on terrorism charges. Her lawyer, Jeremy Gauntlet, told the Supreme Court that Mukoko's rights had been grossly violated, including by being denied medication and a lawyer, and by being kept in solitary confinement.

"The process (of her arrest) is so contaminated that you should order a stay of prosecution," Gauntlet told the court, adding that prosecutors were solely relying on evidence extracted from Mukoko during torture to prosecute her. State prosecutor Fatima Maxwell, in response to a question from Chief Justice Godfrey Chidyausiku, said the state did not dispute Mukoko'sevidence and had not questioned the security agents who had abducted her. Asked if she was conceding that Mukoko's abduction and detention were illegal, Maxwell told the court: "Yes my Lord."

Gauntlet chronicled Mukoko's ordeal during the period of her detention until she was handed over to the police. He argued that during the period in question state security agents had acted in complicity with the police as evidenced by the fact that when she was finally handed over to the police, the police were actually given material which had purportedly been extracted from her as evidence.

Gauntlet further challenged the state to show to the court any law which grants state security agents the power to act in such a manner. He further argued that given the extremity of the violations of the applicant's rights, the only fitting remedy would be a permanent stay of the proceedings and the award of damages to Mukoko.

He noted nine points which, in his view, warranted a finding in Mukoko's favour:

(i) no warrant of arrest
(ii) subjection to inhuman and degrading treatment
(iii) unlawful detention
(iv) solitary confinement
(v) torture
(vi) threats of harm
(vii) deprivation of medical care
(viii) deprivation of access to a lawyer
(ix) connivance between the police and state security agents

The state, represented by Fatima Maxwell, did not dispute these allegations, but dwelt on inconsistencies in the accounts of what transpired. However, the Chief Justice, who was supported by Justice Malaba, noted that the inconsistencies were irrelevant and that the major question was whether or not the alleged violations constituted an infringement of Mukoko's constitutional rights. Questioned on this point the state conceded that the violations indeed constituted an infringement on the applicant's Bill of Rights. Chief Justice Chidyausiku reserved judgment indefinitely.

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