VZCZCXRO5973
OO RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHSB #0775/01 2711503
ZNR UUUUU ZZH
O 281503Z SEP 09
FM AMEMBASSY HARARE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4958
INFO RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHUJA/AMEMBASSY ABUJA 2384
RUEHAR/AMEMBASSY ACCRA 3058
RUEHDS/AMEMBASSY ADDIS ABABA 3171
RUEHRL/AMEMBASSY BERLIN 1600
RUEHBY/AMEMBASSY CANBERRA 2434
RUEHDK/AMEMBASSY DAKAR 2803
RUEHKM/AMEMBASSY KAMPALA 3219
RUEHNR/AMEMBASSY NAIROBI 5664
RUEHGV/USMISSION GENEVA 2351
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 02 HARARE 000775 
 
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 EAID ASEC PGOV PREL ZI
SUBJECT: ZIM SUPREME COURT: SECURITY FORCES VIOLATED MUKOKO'S 
CONSTITUTIONAL RIGHTS 
 
REF: A. HARARE 524 
¶B. HARARE 29 
 
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SUMMARY 
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¶1. (U) On September 28 the Chief Justice of the Supreme Court of 
Zimbabwe issued a ruling on behalf of a unanimous court that the 
constitutional rights of human rights activist Jestina Mukoko had 
been violated in connection with her abduction, torture, and 
detention by State agents last year.  The Court further ruled that 
her rights had been violated to such an extent as to warrant a 
permanent stay of prosecution in the pending terrorism case against 
her.  Finally, the Court ruled that a related pending case against 
eight others should also be stayed.  The Court will issue a detailed 
document describing the justification for the ruling in the future. 
A court-ordered investigation into the circumstances of the 
abductions of Mukoko and the others is pending, as are civil suits 
for damages against police, security agents, and government 
officials.  END SUMMARY. 
 
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Court Grants Reprieve 
--------------------- 
 
¶2. (U) In an overflowing courtroom at the Supreme Court, Chief 
Justice Godfrey Chidyausiku read the unanimous finding of the Court 
that Jestina Mukoko's constitutional rights were violated to such an 
extent that she is entitled to a permanent stay of the prosecution 
against her.  Specifically, the State violated her rights under 
sections 13(1), 15(1) and 18(1) of the constitution.  These sections 
afford protection of the rights to liberty, to freedom from torture, 
and to the full protection of the law.  Mukoko's application to the 
Supreme Court for a stay of proceedings based on her abduction in 
December 2008 was heard in June this year (Ref A).  During the June 
hearing, her lawyers described her abduction and torture in detail 
and the State admitted its agents had tortured Mukoko.  The 
underlying charge of terrorism against Mukoko was based on an 
alleged plot to recruit insurgents to launch an armed insurgency 
from Botswana. 
 
¶3. (U) Today's Supreme Court ruling also applies to eight other 
abductees who faced similar charges.  Another group that was 
abducted in the same time frame and is charged with a 2008 series of 
bombings of police stations, railroad tracks, and bridges, was not 
included in the September 28 ruling; that application is pending 
separately with the Supreme Court.  Lawyers tell us that unless the 
State can somehow differentiate the cases, the "bombers" should also 
receive the same stay of prosecution from the Supreme Court. 
 
¶4. (U) With the stay of prosecution, police will return Mukoko and 
the other defendants their passports, and they will no longer have 
to report regularly to the police, as required by the bail granted 
in February.  The Court will issue a detailed written ruling at some 
Qin February.  The Court will issue a detailed written ruling at some 
point in the future, but this may not happen for several months. 
 
------------------------------ 
Still Pending: Prosecution for 
Perpetrators and Civil Suits 
------------------------------ 
 
¶5. (U) The abductees' court battles are not over yet, but they are 
moving from defense to offense.  The nagging issue of prosecution 
 
HARARE 00000775  002 OF 002 
 
 
against those who ordered and carried out the abductions will likely 
now move to center stage.  In January, a magistrate's court ordered 
police to investigate the abductions, torture, and illegal 
detentions, including the identities of all those responsible.  At 
the time, then-Minister of State Security, Didymus Mutasa, submitted 
an affidavit attempting to block the investigation; the court 
nonetheless ordered police to investigate and to file a report by 
February.  To date, the police have not done so.  Lawyers believe 
that, although today's ruling is a significant acknowledgement of 
the State's illegal actions, justice will not fully be served until 
those responsible for the abuses are held accountable. 
 
¶6. (U) In addition, the abductees have already filed civil suits for 
damages.  Mukoko and other abductees separately sued two cabinet 
ministers and the security agents who abducted them for a combined 
USD 19.2 million in damages for unlawful abduction, detention and 
deprivation of liberty.  In an application filed at the High Court 
on July 27, Mukoko claimed USD 220,000 from Defense Minister 
Emmerson Mnangagwa and co-Ministers of Home Affairs Kembo Mohadi and 
Giles Mutsekwa.  Mukoko also sued State Security Minister Didymus 
Mutasa, Attorney General Johannes Tomana, Police Commissioner 
General Augustine Chihuri, Police Chief Superintendent Peter 
Magwenzi, and Walter Tapfumaneyi, an agent of the State's Central 
Intelligence Organization.  The suit against Tomana alleges he 
failed to meet his constitutional obligation to ensure the arrest 
and prosecution of her alleged kidnappers.  The High Court has not 
yet set a date to hear Mukoko's application. 
 
¶7. (SBU) In addition to the pending civil suits, earlier this month 
some abductees sent a letter to the Attorney General's head of 
litigation, Tawanda Zvekare, seeking assistance in returning the 
property that was taken by the State security agents who abducted 
them in 2008. For example, Gandhi Mudzingwa lost his truck, USD 310, 
a cell phone, and shoes.  Fidelis Chiramba lost three cameras, 
shoes, and a belt.  Freelance journalist Andrisson Manyere lost USD 
4,500, a laptop computer, three cell phones, a digital camera, and 
his passport.  Mukoko jokingly told us that she was "lucky" because 
since she was taken in the middle of the night, without even a 
chance to get her glasses, the security agents didn't have anything 
of hers to keep.  Zvekare has not responded or acknowledged receipt 
of the letter. 
 
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COMMENT 
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¶8. (SBU) The Supreme Court ruling in favor of Jestina Mukoko is a 
welcome development.  We expect that the "bombers" will soon receive 
a similar ruling from the Court.  The Mukoko judgment is a public 
Qa similar ruling from the Court.  The Mukoko judgment is a public 
embarrassment to the State security apparatus and the ZANU-PF 
officials who were in charge of it at the time, including the 
police, intelligence officers, and Minister Mutasa.  We expect that 
ZANU-PF will spin it as demonstrating that rule of law exists in 
Zimbabwe.  We celebrate today's ruling, but we are all too aware 
that the State could easily invent other charges against these 
activists or obstruct the pending civil suits and investigations 
against the State agents who carried out the abductions.  END 
COMMENT. 
 
PETTERSON