'Incompetent' lawyers botched Mukoko freedom bid

'Incompetent' lawyers botched Mukoko freedom bid - judge

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• Judge rules Mukoko must be treated in prison

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• Mukoko says she was tortured, wants charges dropped

• Magistrate withholds contempt ruling on Mukoko and others

• Mukoko, 9 others charged with plot to overthrow Mugabe

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Posted to the web: 15/01/2009 00:01:12
ZIMBABWE’S Chief Justice on Wednesday ordered urgent medical care for human rights campaigner Jestina Mukoko and other activists who say they were tortured while in police custody, but he was scathing of the activists’ “incompetent” lawyers for mishandling an application challenging their detention.

Mukoko, described by the attorney general as a threat to society, is accused with the others of plotting to topple President Robert Mugabe.

In a ruling released on Wednesday, chief justice Godfrey Chidyausiku ruled that: "Applicants be accorded appropriate medical attention as a matter of urgency."

But Chidyausiku dismissed the main application by the activists to be released on the grounds that their arrest had been done outside the law. Most of the activists were abducted and held for several weeks before being brought to court, with the police repeatedly insisting they were not in custody.

Chidyausiku said instead of approaching the Supreme Court challenging the constitutionality of the circumstances of their detention and the charges against them, lawyers for the activists should have made an application to the magistrates’ court to have the matter referred to the Supreme Court, also the country’s constitutional court.

The judge blasted: "It is a matter of regret that an opportunity to determine this application on an urgent basis has been squandered by the crass incompetence and sheer ineptitude of the applicant’s legal practitioners, who do not appear to have taken the trouble to peruse the provisions of Section 24 of the Constitution, before committing pen to paper and drafted this application.

"In my view, the best way forward is to dismiss this chamber application and, hopefully, the applicant’s lawyers will familiarise themselves with the provisions of Section 24 of the Constitution and the judgments of this court before advising the applicant on the best course to follow.

"I accept that the matter is urgent. I, however, do not accept that the matter should be set down because the constitutional application is fatally defective in that it does not comply with Section 24 of the Constitution.

"Section 24 is peremptory. This court has no discretion to condone a departure from compliance with the section. Consequently, failure to comply with the procedure set out in the section is fatal to any court application made in terms thereof.”

Defence lawyers Beatrice Mtetwa and Harrison Nkomo will apply on Thursday to have the case referred to the constitutional court.

Attorney General Johannes Tomana, appointed by Mugabe last month, told the state-owned Herald newspaper in an interview published on Wednesday that there was enough evidence to suggest Mukoko committed a crime and should not be released.

"Any attorney general in the world would do what I am doing given a case like the one involving Mukoko," Tomana said. "Evidence gathered proves that she is a threat to society and she should not be released now."

Mukoko and other activists accuse state security agents of torturing them to extract confessions and deny the charges against them. The government says it does not use torture.

The MDC faction led by Morgan Tsvangirai accuses Mugabe of using the arrests to exert pressure to force it into joining a unity government from a position of weakness and without the posts it seeks. Tsvangirai has said the cases could wreck the power-sharing agreement with Mugabe. - Staff Reporter/Reuters
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