State terrorists, not human rights activists, should face trial in Zim

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Makomborero Haruziviishe when he was released from prison

By Thandekile Moyo

INSTEAD of fulfilling its obligation to prosecute the known perpetrators of the crimes against Tawanda Muchehiwa and other human rights activists, the State seems to be shielding the perpetrators and putting the victims on trial.

On July 30, 2020, Tawanda Muchehiwa, a Zimbabwean human rights activist, was abducted from a hardware shop in Bulawayo.

CCTV footage shows men removing Muchehiwa from the car he was in and stuffing him in a white Isuzu truck that sped off.

The car is shown stopping a few hundred metres away and men are seen transferring Muchehiwa from the truck into a white Ford Ranger.

The licence plate of the Ford Ranger is clearly captured by CCTV cameras. Investigations revealed that the car used in the abduction of Muchehiwa was from Impala Car Rental.

Nqobani Sithole, a lawyer from the Media Institute of Southern Africa, went to Bulawayo Central Police Station to look for Muchehiwa, as further investigations had revealed that he had been in the company of his two cousins and an older woman who were taken to that police station.

Sithole alleged that the police initially denied having arrested Muchehiwa and his three companions. After Sithole insisted that he knew they were in police custody, the police produced Muchehiwa’s cousins Amandlenkosi and Advent Mathuthu.

The police claimed they had released the other companion, Tendai Masotsha and that Muchehiwa had escaped.

The cousins said they had been abducted by armed men in plainclothes, bundled into separate cars and taken to Bulawayo Central Police Station, but had no idea where Muchehiwa had been taken.

The next day, Sithole returned to the police station again in search for Muchehiwa but he was nowhere to be found.

Sithole then filed a writ of habeas corpus to order the police to produce Muchehiwa.

A magistrate granted the order on  August 1, stating that the police had 72 hours to release Muchehiwa.

On August 3, as per the habeas corpus order, the police produced Muchehiwa to the magistrate.

He was badly injured and had to be transported to court in an ambulance.

He had been tortured during the course of his abduction.

He had deep cuts on his backside and shoulders, among other injuries.

A few days after he was produced, Muchehiwa suffered renal failure from the torture and had to be put on dialysis.

It was and still is evident that the following crimes, falling under Chapter V of the Criminal Law (Codification and Reform) Act of Zimbabwe (Chapter 9:23), were committed against the person of Muchehiwa:

Assault — section 89

Kidnapping or unlawful detention — section 93

Attempted murder — section 57

According to the Act, “assault” means:

(a) Any act by a person involving the application of force, directly or indirectly, to the body of another person, whereby bodily harm is caused to that other person; or

(b) Any act by a person that causes, directly or indirectly, the injection into or application to the body of another person of any substance without that person’s consent; or

(c) Any act by a person that causes any substance to be consumed by another person without that person’s consent.

All these acts were done to Muchehiwa by his captors.

On kidnapping or unlawful detention, the Act states: “Any person who deprives an adult of his or her freedom of bodily movement, intending to cause such deprivation or realising that there is a real risk or possibility that such deprivation may result; shall be guilty of kidnapping or unlawful detention and liable A) to imprisonment for life or any shorter period…”

Section 57 of the Act: Deflected blow in homicide cases, says:

“If any person does or omits to do anything in relation to another person which, if it caused that other person’s death, would constitute murder… he or she shall be guilty of attempted murder if the intended victim does not die…”

According to section 5 of the Act (Territoriality of crimes), “a person may be tried, convicted and punished for a crime, whether in terms of this code or any other enactment, where the crime or an essential element of the crime was (a) committed wholly inside Zimbabwe…”

These three crimes — assault, kidnapping and attempted murder — were committed against Muchehiwa inside Zimbabwe.

The State is, therefore, obligated to investigate these crimes and prosecute the perpetrators.

Central to this case is Impala Car Rental, which provided one of the cars used to abduct Muchehiwa.

The rental company has trackers on its cars, meaning it has information on who rented the car and must have information on where the car went — where Muchehiwa was unlawfully detained and assaulted from July 30, 2020 to the night of August 1 2020.

A magistrate granted an order for Impala Car Rental to avail documents to Muchehiwa’s lawyers showing who hired the vehicle used in the abduction as well as the tracker showing where the car went. The company defied the court order.

“Charge Impala Car Rental”

Human rights activists, civil society organisations and other citizens launched a campaign demanding that the State should charge Impala Car Rental for crimes against the administration of justice (Chapter VI), namely, contempt of court — section 82 — as well as defeating or obstructing the course of justice — section 184.

Instead of compelling Impala Car Rental to adhere to the court order and to assist the State with investigations, the State arrested Makomborero Haruziviishe, Youngerson Matete and Prince Gora.

They were among the activists demanding that Impala should adhere to the court order by giving Muchehiwa’s lawyers the names of the perpetrators of the kidnapping (abduction) and assault (torture).

On March 31 2021, Haruziviishe was convicted of “inciting public violence and resisting a peace officer”.

Instead of fulfilling its obligation to prosecute the perpetrators of the crimes against Muchehiwa, the State seems to be shielding them.

The arrest of Haruziviishe et al, is a clear attempt to conceal the crimes committed by Impala Car Rental as well as the perpetrators of Muchehiwa’s abduction and torture. Instead of prosecuting the perpetrators of this egregious crime, the government of Zimbabwe is persecuting Haruziviishe, Matete and Gora for demanding justice.

The trial of the three activists, who are currently on remand out of custody is set to commence on March 16. Amnesty International has called for charges to be dropped against Haruziviishe.

This trial does not take away the government’s responsibility to hold the perpetrators of Muchehiwa’s kidnapping and assault accountable.

The government of Zimbabwe knows which of their agents abducted Muchehiwa. We, the people of Zimbabwe, have the responsibility to join Matete, Haruziviishe and Gora in demanding justice for Muchehiwa. Impala Car Rental must be ordered to adhere to the court order or be charged with contempt of court.