MDC DG case referred to Supreme Court

By Violet Gonda
23 June 2009

A Harare magistrate on Tuesday ruled that MDC Director General Toendepi Shonhe, could challenge his incarceration in the Supreme Court. The MDC DG is challenging the constitutionality of Section 121 subsection (3) of the Criminal Procedure and Evidence Act, which he says is repeatedly abused by State prosecutors who use it to block bail granted to accused persons.

His lawyer, Alec Muchadehama, said the Supreme Court challenge is likely to be heard sometime in the next two months. In the meantime the Attorney General’s office has until Thursday to file an appeal against Shonhe’s bail. The MDC official was arrested on alleged perjury charges last Tuesday and granted bail on Thursday, but remains in prison after the State blocked his bail.

He is accused of lying under oath when he swore in an affidavit that three members of the MDC had been re-abducted by State security agents. He denies lying before the courts.

The latest ruling comes a day after four other MDC activists were also granted an application to challenge their case in the Supreme Court, by a High Court judge. They say their prosecution was illegal. The four – including Jestina Mukoko - are among a group of MDC and civic activists challenging their abduction and torture at the hands of state security agents. They are all accused of acts of terrorism and sabotage and planning to overthrow the former Mugabe government.

Zimbabwe Lawyers for Human Rights said the abductees want the Constitutional Court to determine whether or not their abduction ‘constituted unlawful deprivation of liberty, and whether their right to protection from torture, protection of the law and their right to a fair trial had violated the Constitution of Zimbabwe’.

The lawyer also said a complete record of the activists’ case in the High Court so far, will have to be transcribed and this will take a long time. As in Shonhe’s case this means their constitutional challenge will probably only be heard sometime in the next couple of months.

Legal experts say these constitutional challenges will be a crucial test for Zimbabwe's judiciary. The South African publication, Legalbrief Today, said the Supreme Court would either decide to uphold the individuals rights under the constitution of Zimbabwe or “permit the executive to act unconstitutionally.

Legalbrief added that if the State’s case was upheld this would ‘condone’ the view of the attorney- general who told the court that he is not subject to court orders. They said ‘it will be argued before the court that the state has not only failed to investigate and prosecute those who so fundamentally violated Mukoko’s rights, but the state is in fact the very authority which authorised the violations in the first place.”
Lawyers say the facts are so ‘stark’ that the court will have no option but to make a very clear choice, that will show whether Zimbabwe can indeed move out of the crisis that it is in.

Muchadehama added: “In view of the Executive’s excesses and arbitrariness in which they act, the only avenue to escape is to go to the courts and get the courts’ protection to pronounce beyond doubt that the Executive cannot treat human beings in the manner that they have done and protect people in the future.”