Wednesday, November 14, 2012

Let down by my usually useful vocabulary

Almost a year now without publishing anything here. Was keeping my tongue in check. In January last year, I quoted Habakkuk (I usually spell it with a double b not double k) without attribution (I can't possibly plagiarise the bible, can I?). I am compelled to revisit the issue of justice again. Solomon Madzore was in remand prison for over a year. I am happy that he is out and the same time incensed by his unjustifiable incarceration. Just in case, I am accused of missing something in this accursed saga, there are twenty six others still being held. They have been there for longer too.

I remember Justice Bhunu and the Chief Justice reprimanding a lawyer in this trial (is it persecution?) for saying that the judges are political. Well, he should not have said that but are they apolitical? Why are they hopelessly and blissfully oblivious to the obvious and very public fact that they are presiding over a contrived case designed to achieve political ends? Let's have some context here.

There was a gathering of MDC youths, exercising their right to gather. What they were gathering for is immaterial. They were exercising this right without interfering with any other persons rights. The later point is important since the only reason why the exercise of one's rights can be limited is when they infringe on the right of others. Even then, the extend to which you infringe on others' right should be factored in. A police officer or officers decided that this gathering of youths was illegal. I wonder whose rights were being affected by this gathering. The youths proceeded to gather, and the police proceeded to try to disperse the gathering and one of them was killed in the violence that followed. Now, any death is not justifiable...but there are some people who have died for worthier causes. The response was the arrest of many people at different times and they were all accused of killing this single officer using a single stone or that they contrived to kill that officer.

The judges then proceeded to deny them bail because there is a law that says if you kill an officer on duty then you should not be granted bail. There is something very ridiculous about this law. It is one-sided. What happens if a police officer kills a person? Why should they be granted bail (less than 100 USD in the Shamva murder case compared to 500 USD for Madzore)? After all, they have a higher responsibility given that they act for an institution. It simply means all those people killed by the police do not matter, only a police officer matters. Even if there were compelling arguments for that law, surely there should be a prima facie case for someone to be arrested and detained for this long. There problem is, in a mad rush to persecute and reduce these activists' political and social horizons the police arrested people from a random list of persons without bothering to investigate and put together a credible story. Realising that their case was not in any way credible, they assigned Ntini to come up with different versions of the story based on unknown witnesses. I understand the the Rashomon effect is where several witnesses to an incident have different recollections and indeed renderings of the story. I haven't heard of the same effect in a single individual in a court of law under oath.

Surprisingly, there were well over 200 murders in 2008, a lot more in 2002, even more in earlier events but the murderers are free to roam, intimidate and repeat their crimes while Ntini is giving different versions of the same story. We have seen this before. Remember Cain Nkala? He was abducted and killed. The police immediately arrested activists. The party, ZANU PF, took this opportunity to go on a propaganda drive (remember the posters written BEWARE OF THE MDC SHOELACES?). The police completely forgot that a crime had actually been committed. Instead of approaching the issue with an open mind, they followed where the propagandists pointed. The result was prosecution that could not be sustained. It was mired in torture allegations, denial of much needed medical attention, falsehoods, different versions of the same story and outright failure to investigate. The police neglected their duty to find the perpetrators. Those people are still at large.

We are now confronted with the same issue. Surely, if someone was not at the place where the police officer was killed then he cannot be accused of killing him. He or she cannot be accused of planning to kill him given the spontaneous nature and circumstances of the killing. You can only believe that such a conspiracy existed if there was a well planned ambush. There was none. And, you cannot arrest a relative in order to flush a person from hiding. This matter has not been concluded, but there are questions that can be asked. Is it admissible to base an argument on a nameless and faceless informant who, obviously, cannot be cross-examined? Is it okay for an investigating officer to suppress key information pointing to a person's innocence, deceiving a judge in the process, and get away with it? Will the apolitical judiciary act on this effort to con them? These people are being granted bail. The prosecution, which strenuously opposed bail, are now willing to discuss which people they do not mind granting bail. That seems like progress. Sadly, it is not. What is happening here is to get these people out on bail but leave the threat of prosecution hanging over their heads. This means the trial will drag on for as long as possible while the 29 people's ability to travel (surrender your passport), organise (a capricious policeman can detain you and claim you violated your bail conditions - these guys can lie) or live normal lives are severely limited.

What the judges do not realise is that this trial is based on profiling people on the basis of their political affiliation. It makes the trial and everything in it political. Sadly, that includes the judges. True, it is the fault of the procedures that they are supposed to follow but those procedures inflict so much pain. In the event of these people being acquitted, they will not be compensated. They will be told to pursue their case in civil court and the issue will drag on and on. I do not have the words to describe this system. And, I wonder why a gathering organised by a legal political party to pursue its political goals can be deemed to be illegal by a police officer. The poor officer died in the process of enforcing a hopelessly ridiculous and repressive piece off legislation. He could have died for a better cause.