VZCZCXRO4083
OO RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHSB #0524/01 1801228
ZNR UUUUU ZZH
O 291228Z JUN 09 ZUI NUM SVCS H/W ZDK
FM AMEMBASSY HARARE
TO RUEHC/SECSTATE WASHDC 4653
RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHUJA/AMEMBASSY ABUJA 2333
RUEHAR/AMEMBASSY ACCRA 2913
RUEHDS/AMEMBASSY ADDIS ABABA 3032
RUEHRL/AMEMBASSY BERLIN 1464
RUEHBY/AMEMBASSY CANBERRA 2295
RUEHDK/AMEMBASSY DAKAR 2662
RUEHKM/AMEMBASSY KAMPALA 3080
RUEHNR/AMEMBASSY NAIROBI 5523
RUEHGV/USMISSION GENEVA 2208
RUZEHAA/CDR USEUCOM INTEL VAIHINGEN GE
RUEAIIA/CIA WASHDC
RUCPDOC/DEPT OF COMMERCE WASHDC
RUEHC/DEPT OF LABOR WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RHEFDIA/DIA WASHDC
RUZEJAA/JAC MOLESWORTH RAF MOLESWORTH UK
RUEKJCS/JOINT STAFF WASHDC
RHEHAAA/NSC WASHDC

UNCLAS SECTION 01 OF 03 HARARE 000524 
 
SENSITIVE 
SIPDIS 
 
AF/S FOR B. WALCH 
DRL FOR N. WILETT 
ADDIS ABABA FOR USAU 
ADDIS ABABA FOR ACSS 
NSC FOR SENIOR AFRICA DIRECTOR M. GAVIN 
STATE PASS TO USAID FOR L.DOBBINS AND E.LOKEN 
 
E.O. 12958: N/A 
TAGS: PHUM ASEC KDEM PGOV PREL ZI
SUBJECT: STATE ADMITS TORTURING MUKOKO 
 
REF: 08 HARARE 1147 
 
HARARE 00000524  001.3 OF 003 
 
 
------- 
SUMMARY 
------- 
 
¶1.  (SBU) On June 24, the Supreme Court of Zimbabwe heard a landmark 
case brought by human rights activist Jestina Mukoko, arguing that 
her abduction, torture, and illegal detention in December 2008 
constituted such a grave violation of her constitutional rights that 
the court should permanently stay the prosecution's case against her 
for allegedly conspiring to mount an armed insurgency against the 
government in the post-election period last year.  In the court 
room, crowded with onlookers including numerous diplomats, 
journalists, and leaders of civil society, the State argued that 
although her rights were violated, there are other remedies 
available (i.e. civil law suits).  Shockingly, the prosecutor 
admitted that Mukoko had been illegally abducted, tortured, and 
detained during a horrific three week period in December 2008.  END 
SUMMARY. 
 
------------------------ 
Mukoko's Rights Violated 
------------------------ 
 
¶2.  (U) In nearly two hours of argument, Mukoko's lawyer, 
distinguished South African advocate Jeremy Gauntlet, detailed her 
abduction and the degrading treatment and torture she experienced in 
illegal State custody between December 3 and 22, 2008.  Mukoko, a 
Zimbabwe Peace Project (ZPP) colleague, and other MDC activists are 
accused of recruiting insurgents to launch an armed rebellion from 
Botswana.  Mukoko cried silently at times as Gauntlet read from 
Mukoko's written affidavit (reftel), describing how State agents 
beat her on the soles of her feet and forced her to kneel for hours 
on sharp gravel.  Gauntlet acknowledged that the State could only 
permanently stay prosecution in "exceptional" cases and said, 
ironically, he was "not confident" that Mukoko's case of abduction 
and human rights violations was exceptional in Zimbabwe.  He laid 
out the three main questions for the court to decide: (1) What are 
the facts and what evidence has the State presented against Mukoko? 
(2) Do the facts establish a violation of Mukoko's rights? and (3) 
What does the State do when evidence is brought forth with "dirty 
hands"?  He described Mukoko's case as a "textbook" example of a 
case in which the court hould stay the prosecution because of how 
consistently and severely her rights were violated. 
 
¶3.  (U) The evidence against Mukoko, importantly, is based on a 
confession she made while illegally detained and after being 
tortured by State security agents between December 3 and 22, 2008. 
Others who face similar banditry charges were also abducted and 
tortured to confess to various roles in the plot.  To support his 
argument, Gauntlet presented affidavits previously submitted by 
Minister of State Security, Didymus Mutasa, and police 
QMinister of State Security, Didymus Mutasa, and police 
superintendent Peter Magwenzi (Magwenzi received Mukoko and over a 
dozen other blindfolded abductees from State security agents into 
his custody on December 22).  Both Mutasa and Magwenzi acknowledged 
that Mukoko and others were in the custody of State agents prior to 
being turned over to police.  Gauntlet pointed out that the State 
has never contested the veracity of Mukoko's claims nor sought to 
investigate the actions of those officers who abducted or tortured 
her.  Indeed, Mutasa's own statement acknowledged that he was aware 
that State agents had been authorized to act without any 
identifiable power under Zimbabwe's constitution or laws. 
 
¶4. (U) Gauntlet concluded by identifying nine specific violations of 
 
HARARE 00000524  002.5 OF 003 
 
 
Mukoko's constitutional and human rights: 
 
-- Her abduction by State agents on December 3, 2008; 
-- The degrading and inhumane treatments she was subjected to when 
removed from her home (not allowed to change from her dressing gown 
or to retrieve her glasses; in the vehicle her face was forced in 
the lap of one of her male abductors); 
-- Her unlawful detention between December 3 and 22, 2008; 
-- Her unlawful solitary confinement during that period; 
-- Her torture in detention during that period; 
-- The death threats her abductors used to taunt and intimidate her 
during that period; 
-- Her unlawful deprivation of medical care, even with a court order 
after she was taken to Chikurubi prison; 
-- Her unlawful deprivation of legal practitioners, even after she 
was taken to the police on December 22, 2008; and 
-- The "cumulative connivance" of police, unnamed State agents who 
abducted and tortured her, the Minister of State Security (Mutasa), 
and the Attorney General who consciously sought to undermine her 
dignity. 
 
------------------------------------- 
Prosecutor: Tomana's Sacrificial Lamb 
------------------------------------- 
 
¶5.  (SBU) State prosecutor Fatima Maxwell, the head of the civil law 
division in the AG's office, appeared extraordinarily ill prepared 
and did not even attempt to dispute the facts of Mukoko's abduction 
in her very short 20 minute counter argument.  Maxwell weakly argued 
that an affidavit submitted by Minister Mutasa--that explicitly 
states that Jestina was in the custody of State security 
agents--shouldn't be admitted because the case it was part of had 
been withdrawn.  She then pointed out two minor discrepancies in 
Mukoko's oral and written testimony.  (Was her head forced down on 
the lap of one of her abductors or on the seat of the car? And did 
she see a sign before or after they blindfolded her?)  In Mukoko's 
35 pages of oral testimony, the State could only identify these two 
minor differences with her written testimony.  Notably, Maxwell did 
not dispute any of the facts presented of Mukoko's abduction or 
torture nor of the State's efforts to protect and defend the actors 
involved. 
 
¶6.  (SBU) As he questioned Maxwell, Chief Justice Chidyasiku --who 
is viewed as compromised and a defender of the ZANU-PF regime -- 
identified various technical points in the case that the AG's office 
could use to strengthen its case.  Nevertheless, he described the 
details of Mukoko's abduction as "an exceptional violation" of her 
rights.  The State prosecutor agreed that Mukoko's rights had been 
violated and that her detention between December 3 and 22 was 
unlawful. 
 
----------- 
AG "Scared" 
----------- 
 
 
¶7.  (SBU) Before presenting the State's case, Maxwell confided to 
Q7.  (SBU) Before presenting the State's case, Maxwell confided to 
our political assistant that AG Johannes Tomana and the government's 
chief prosecutor Florence Ziyambi were "scared" of the case. 
Maxwell also told Mukoko's lawyers that she didn't want to be there 
to present the State's case.  Before the hearing, most lawyers 
expected that either Tomana or Ziyambi would present the State's 
case.  After the hearing, human rights lawyers described Maxwell's 
timid performance as "a joke."  Mukoko told us that even she felt 
sorry for Maxwell. 
 
HARARE 00000524  003.3 OF 003 
 
 
 
-------------- 
Ruling Delayed 
-------------- 
 
¶8.  (SBU) As was expected, the Supreme Court is reserving judgment 
and the ruling could take two or three months.  Mukoko's trial in 
the High Court is scheduled to begin on July 20, and the Supreme 
Court will likely take some action before then, if only to delay the 
trial while the ruling is pending.  While this case only dealt 
explicitly with Mukoko, the other abductees facing similar charges 
have referred similar cases to the Supreme Court.  Lawyers hope that 
this case will serve as precedent. 
 
------- 
COMMENT 
------- 
 
¶9. (SBU) Regardless of the final ruling, the Supreme Court hearing 
is significant because, finally, government officials have admitted 
that Mukoko was illegally abducted and tortured by State agents. 
Furthermore, the State has done absolutely nothing to investigate 
the actions of the State agents who abducted and tortured her.  As 
we continue to push for rule of law and improved human rights 
conditions, the international community can now cite these 
admissions as incontrovertible evidence of the government's 
wrongdoing and the impunity with which State agents continue to 
violate human rights.  The government knows who ordered and carried 
out the abductions, torture, and forced confessions--if only they 
will hold the perpetrators accountable.  END COMMENT. 
 
MCGEE