In a show of solidarity against human rights violation, let me suggest strategies you might pursue to free Jestina Mukoko and other abductees. No condition is permanent. State power is finite. Even Mugabe's reign shall end. But that is no consolation to the millions suffering injustices under his regime. Merely "waiting to see" is unlikely to rescue Jestina Mukoko. What practical steps can be taken to identify her abducters? Trace her whereabouts? Prevent harm and secure her release?
Commonwealth legal systems provide constitutional remedies to safeguard violation of fundamental freedoms. Theoretically, the right to liberty should prevent kidnapping of civilians by anyone, including state authorities. Even arrested and accused persons have a right to be arraigned before a court of law within a reasonable time. In Kenya for instance, it is 24 hours in non-capital charges and 14 days on capital charges. She should be told the reasons for her arrest. The rule of law is that only where a known rule has been violated and provided that such rule is reasonably justifiable in a democratic society, no person may be deprived of their liberty.
This core liberty is operationalised by invoking principles and rules of criminal procedure. Jestina is entitled to a fair trial and to be presumed innocent until proven guilty before being punished. Being detained for an inordinate period in police custody prior to trial negates the principle of a fair trial. Consequently, it is not possible for the State to prosecute any suspect after already infringing their right to be presumed innocent. No confession obtained under these conditions is admissible, for obvious reasons. In fact, therefore, judicial review may be brought to remove such oppressive charges, if and when belatedly laid, before the Zimbabwean High Court to quash them.
The raison d'etre of a free state is to provide security for its citizens. The government is presumed to possess sufficient resources and intelligence to investigate the whereabouts of Jestina. Has the matter been reported to the nearest police station? Then, failure by the police commissioner to explain her sudden disappearance suggests that the government is failing to deliver its core functions. In such circumstances, an agent of necessity would be justified in playing the role of a "surrogate government," if you will. That is what NGOs do.
You might approach an NGO whose mandate covers human rights to assist you draft an urgent application for habeus corpus (meaning "produce that body) directed at relevant government officers as respondents. Such documents are supported by a sworn affidavit by your friend's relatives and eye-witnesses explaining the bizzare circumstances of her abduction.
The Commissioner of Police or the internal security minister should then be summoned to explain what efforts he has made to trace her whereabouts. If she is classified as a missing person, then the Attorney-General should immediately open an inquest file. This enables anyone with information including her creditors, enemies and friends to testify on oath about what they know.
The above approach basically assumes that the executive power to restrict liberties is subject to judicial review. A properly directed magistrate shall apply principles of the rule of law to demand equal treatment for Jestina Mukoko. The court-should compel the internal security minister through his Permanent Secretary, to dispel the public's genuine concern and anxiety.
In a "good society" people do not simply disappear without trace. This is certainly not what happened to Jessie. She was seen being forcibly abducted. International Humanitarian Law establishes various norms which prevent incumbent state actors from abusing their sovereign power while in office. It may become possible to personally prosecute them at the International Criminal Court. This is contingent on securing the arrest of suspects and sending them to the Hague in the Netherlands. The names of suspected culprits may be forwarded to Interpol or the Prosecutor of the ICC only after all domestic procedures have been exhausted.
In conclusion, your first port of call would appear to lie before the municipal courts. Any local advocate can avail services to initiate this. Secondly, depending on the response by the state, then international actors, including the civil society, may feel morally obliged to assist her plight. Particularly the 70 year old Amnesty International.
Finally, even if the Mugabe regime is rotten, not all state functionaries are irredeemable. I would therefore urge you not to lose faith in Zimbabwe's secular constitution. Nobody likes horrifying stories of involuntary abduction. Missing persons adverts should be posted in the local dailies, at every police station and broadcast over the radio FREE OF CHARGE. Appeal to the nobility in fellow citizens, including but not limited to, professionals.
A Nairobi Based Lawyer
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