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Justice delayed is justice denied for 'petrol bombers': lawyers
Lucia Makamure, The Zimbabwe Independent
August 24, 2007

LEGAL experts have expressed concern over the failure by the magistrates courts to set a trial date in the case of 23 MDC activists accused of banditry, despite a High Court ruling that there was a lack of evidence against them.

The experts have further argued that the continued incarceration of the opposition activists was tantamount to state persecution.

This comes in the wake of the magistrates courts' decision to further remand the activists a fortnight ago to October 8 on bail.

The activists have appeared in court for a record 53 times and by October 8 they would have clocked six months on remand.

This, the activists' lawyers said, calls for an enquiry into the violations of the activists' rights as enshrined in the Zimbabwe Constitution.

Alec Muchadehama, one of the lawyers representing the activists, said it now appears that the lower courts were colluding with the state to come up with unjustified further remands.

"The courts have not been forthcoming with a trial date which has resulted in the violation of my clients' right to a fair trial," Muchadehama said. "If a case goes beyond six months before a trial, it triggers an enquiry as my clients' right to a fair trial would have been violated."

He said if an enquiry is undertaken, his clients' case would be made stronger by the fact that the activists were in police custody for over three months.

"My clients have been in custody for the large part of the prescribed time which calls for an enquiry," Muchadehama said.

The case of the 23 MDC activists has been described by the legal experts as clear indication of the dearth of the rule of law as due process in prosecution has not been adhered to.

The experts argued that the police arrested the activists before completing their investigations.

Wilbert Mandinde, legal officer for the Media Institute of Southern Africa, said the courts were using further remands to cover up for the state's failure to come up with incriminating evidence against the alleged petrol bombers.

"The police have not been following the proper procedure of investigating before making arrests in this case as they have been using excuses of needing more time to carry out investigations when they have already arrested the suspects," said Mandinde - a former Harare magistrate.

Zimbabwe Lawyers for Human Rights acting director Irene Petras said there was concern over the long period the activists have been on remand.

"We have been following the case and we are concerned that the activists have been on remand for that long," said Petras.

Petras said Justice Lawrence Kamocha's judgement in granting the activists bail showed that there was very little or no evidence at all to support the charges against the activists.

"It is important that the courts provide a trial date for this case as soon as possible as justice delayed is justice denied," added Petras.

In a bail application ruling in favour of the activists - including MDC MP Paul Madzore - Justice Kamocha ruled that the state had failed to strengthen its case with the passage of time.

"As far back as 10 May 2007 the police had promised to bring critical evidence against the applicants from South Africa but with the passage of time it turned out that they had obtained nothing from South Africa incriminating the applicants," Kamocha said.

The judge said police could not prove as alleged that the MDC activists were trained at a farm known as Lala Bundu in South Africa. He said police also failed to substantiate the existence of the farm.

He ruled that it was unjustified to grant the police more time to carry out their investigations while the activists were still in custody.

"This is clearly pre-trial incarceration for the purposes of carrying out investigations which is undesirable and has always been frowned upon," ruled Kamocha.

Kamocha also noted the state's failure to strengthen its case when he granted bail to two other activists, Morgan Komichi and Denis Murira.

"The state's allegations are contradictory. the state case has not been strengthened after a long time has elapsed. There will be no justification to keep the applicants in custody pending trial," said Kamocha in his judgement.

Kamocha in passing the bail ruling also revealed that investigating officer Assistant Commissioner Musarashana Mabunda had provided conflicting evidence on the dates when the activists are alleged to have undertaken military training in South Africa.

"The allegations that are being preferred against the applicants are not clear in that at one stage it was being alleged they underwent military training between December 2006 and March 2007 in Pretoria and Orange Free State. As time progressed it was alleged that the military training in South Africa took place in 2001,"said Kamocha.

Mabunda is said to have further contradicted himself by swearing in an affidavit on June 19 that the alleged training took place in South Africa in different phases between 2002 and 2006 which the judge said makes it difficult for accused to know the period they allegedly underwent military training.

The police recently issued two reports, entitled Opposition Forces in Zimbabwe: A Trail of Violence and Opposition Forces in Zimbabwe: The Naked Truth, Volume 2 to substantiate their claims that the opposition and the civic organisations are working together for the purpose of violently overthrowing the government of President Mugabe.

The reports according to the Zimbabwe Human Rights Non-Governmental Organisations Forum seek to portray opposition parties and civic organisations as grouped together with the aid and assistance of foreign governments for the purpose of violently overthrowing the government.

"The reports are interesting and informative on account that they naively reveal about the politicisation of the police, the use of state resources for party political purposes and the psychology and occasionally astounding jurisprudential ignorance of members of the ZRP," said the forum on the reports.

However, the collapse of the case has exposed the police's failure to prosecute the alleged petrol bombers and has discredited their reports.

The NGO Forum has called the report "at best a falsehood, at worst a lie" mainly because they suspect most of the information used to compile the report to be false.

The gradual collapse of the case has exposed Mugabe for having misled the Southern African Development Community (Sadc) leaders in March to believe that Zimbabwe was under siege from the MDC.

The court's failure to prosecute the alleged "petrol bombers" has also resulted in friction between the Attorney-General Gula-Ndebele and the government.

Nonetheless the failure by the courts to prosecute the alleged petrol bombers did not deter the government from telling the just-ended Sadc summit that the country was under siege from the opposition.

Both the President and the Minister of Justice Patrick Chinamasa made it clear that the MDC was responsible for the petrol bombings yet no successful prosecution has taken place.

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