Jestina Mukoko has been in police custody for two months. On Wednesday, High Court Justice Chitakunye denied her bail ostensibly because she “had yet to be advised by a court on her charges.”

Now, I don’t have any legal training, but this struck me as patently absurd. And surely illegal. Rule of law? What rule of law.

So I asked a lawyer friend for his thoughts, and for his sense of whether the Justice had any legal backing for his decision. He referenced the Criminal Procedure and Evidence Act, and helped to interpret it a bit:

117 Entitlement to bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

Now the crucial words here are “at any time” and “on a charge”. The words on a charge are generally accepted here to mean not that a formal charge has been put (as the judges seemed to hold) but on allegations of having committed an offence or reasonable suspicion thereof. If, however, the person is held without there being a suspicion or allegations of having committed and offence then it is correct to state that the person cannot apply for bail. . . . The judge should order the person’s release without bail as the detention is then unlawful in terms of the Constitution, the name for the court action being the interdictum de homine libero exhibendo, more popularly known as habeas corpus in Anglo jurisdictions.

The judge presumably claimed ignorance of the meaning of “on a charge” in relation to bail applications but more importantly over looked the provisions of 117.

117A Application for bail, bail proceedings and record thereof

(1) Subject to the proviso to section 116, an accused person may at any time apply verbally or in writing to the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate.

Note this section does not mention on a charge. Furthermore the section is ambiguous. It is not clear whether the phrase “before whom he or she is appearing” applies to the phrase “application in writing to a judge or magistrate”. If it does not – and my opinion is that it does not – then a detained person can make an application for bail “at any time” even before he or she has appeared in court, let alone whether any formal charge has been put.

Also aside from the technicalities of the law common sense tells even a lay person that the state cannot scupper any bail application by the simple expedient of not putting formal charges to an accused. When an accused appears in court, the state has to tell the court why the accused is there . . . this counts as appearing on a charge. Often charges are complicated and it takes some time to draw up the formal charge . . . usually only put to an accused when the trial starts.

The whole point of having time limits within which a person must be taken to court is so that a judge can speedily consider the lawfulness of the arrest and determine the question of bail so that the innocent are not held a second longer in custody than is necessary. The approach of the judge overlooks this fundamental principal of our criminal procedure.

All bail issues should be deal with as a matter of extreme expedition. I understand from another lawyer that although the courts hear applications for habeas corpus as a matter of urgency, when the police ignore these orders the subsequent complaint for contempt of court is not. This makes a mockery of the entire system.

If the MDC is planning to extradite Mengistu Haile Mariam, the former Ethiopian dictator, I wonder if they’ll help get Jestina Mukoko out of illegal detention in Zimbabwe?

I’m trying to imagine the following conversation actually taking place between a pair of passion-struck lovebirds: “Honey, guess what I got you for Valentine’s Day?” the man says with a dreamy gaze into his lover’s eyes. “What?” she gasps in excitement. “Tell me!” “The best present ever,” he continues. “I got you …more quality time!” At this point, the young woman is probably imagining that her man is going to whip out a velvet box containing a Swiss, diamond-crusted gold watch, coupled with the biggest bunch of red roses ever seen.

Ha! Dream on, sister. This man actually does mean more time – as in, his gift to you for the year is more time spent together in loving bliss. More time, and less money, spent.

When a friend of mine suggested this as the most romantic gift he could offer his girlfriend, I almost fell off my seat laughing at the thought of the repercussions.

“That’s the stuff of instant break-ups,” I warned him.

But somewhere in his questionable logic, my friend actually believes that he can successfully pull off his plan and get away with showing up doe-eyed and empty-handed on the one day of the year specifically set aside for love and romance.

Now, I know that women generally have a bad name as petty, opportunistic parasites that often thrive on the financial infirmities of males. Put simply, women are often perceived as being gold-diggers, mining the wealth out of men for their own gain. But I think even those among us, who don’t consider ourselves as such, would draw the line at a man’s attempt to pass off an abstract construct like time as a gift on an important day.

To me, that reeks of cheapness and laziness. Yes, this is Zimbabwe. And yes, times are rough (though I am always startled by how many of my fellow citizens move around clutching serious wads of American dollars in their wallets and purses). But even Cupid – the hopeless little romantic that he is – would wing his way all the way here just to angle and shoot one of his arrows into the behind of such a man.

Shame on him, I say for thinking that his suggestion even constitutes a feasible gift idea. A gift for a special day needs to be something that can perceived through the senses, something she can shake about in its wrapped box, trying to guess its contents; something she can excitedly catch a whiff of, like perfume or a well-cooked meal; something palpable.

Besides, we Zimbabweans live in curious times. We suffer much and sacrifice even more -dreams, memories and even hopes. If there is any group of people whom I expect out on the streets, painting the town red with passionate and compassionate love this February 14, it is us. For when all else has ravaged us – political intimidation, economic deflation, scourges of violence and disease and condemnation – all that has remained to console us is love.

And whether you are a traditionalist who believes that V-Day is a commercial gimmick, or a fervent but cash-strapped romantic, I say to you, “Make the effort, this year!”

Pluck a simple flower from an overgrown bush, be patriotic and buy a packet of Zimbabwe-manufactured toffee sweets, or make a simple card with a meaningful message. Whatever it may be, make sure you do something special for someone you love. Our recent history has taught us to value what we have now because we have learned in a cruel way that the future is often not for us to control.

And like I told my friend, I endorse once more, “Time is a precious gift which your loved ones will greatly appreciate. Give it to them throughout the year, but on this special day, give them something more. Give them something they can move around showing off with pride at your love for them. A cheap gold-plated chain that will rust in a few weeks time will do, if that is really all you can afford. It is the moment, the day, the joy of being celebrated that matters.”

Left Harare on 21 Jan. Got a ride to the office, then to the airport, plane delayed by 2 hours, but we finally got to Nairobi (via Dar Es Salaam). Friday, got a flight to Goma. Flying over the great lakes region shows that it has heavy land use. Every scrap of ground has something on it, and very hilly ground too.

In Goma, we have to produce passports and yellow fever vaccine certificates. Jean Pierre and Ali take us to the VIP Palace Hotel. No view of the lake, as promised in the brochure, but lunch is fish and chips. A whole fish, fins, scales, tail, head and all, and it will not fit on the plate! What a change from Zimbabwe. Went for a walk after lunch. There are herds of goats, people washing motorcycles at the side of the lake with lake water, few people swimming (no crocodiles in this lake, sulfurous gases), and the traffic! Notwithstanding that the roads are basically two rut tracks, there are vehicles all over them. And motorcycles – small 125 roadsters – with two people on them and looking for a another passenger. In Goma, they make their own bicycles. All in wood. Two wheels, frame, handlebars. No brakes, no pedals. But it is a bicycle nevertheless. Loaded with stuff (wood, charcoal) and pushed along, or ridden downhill.

There are no buildings over 4 stories in Bukavu, and very few that are two. All wall dominant architecture though. Very continental European. The influence of Bauhaus and Gropius is strong in some houses. Few tile roofs mainly sheet metal. It rains all the time. And the architecture is very ‘peculiar’. I am now staying in a house where the only way into my room is through the bathroom. Has a window to the outside, but you have to go from my room to the bathroom (and hope no one is using it) then into the sitting room. Weird.

Shopping in Bukavu is quite a different thing. There are no ‘shops’, but plenty of vendor kiosks to structures of two rooms selling everything from computer printers and coke. Repackaged sugar (from a 20 kg to 20 x 1 kg plastic scrap bags). Shirts, and tins of beans. I watched someone selling oil (cooking oil) from a tub, pouring it into ‘bring your own bottles’. Everyone sells whatever they can to make a profit on that day.

More later.

The agreement to form a government of national unity between ZANU PF and the two MDC formations has been concluded, raising hopes for Zimbabweans to pick up the pieces and start rebuilding the country.

The GNU, signed by the three political parties namely ZANU PF represented by its President, Robert Mugabe, MDC-T by President, Morgan Tsvangirai and MDC represented by Professor Arthur Mutambara has come at a time when Zimbabwe is experiencing economic meltdown of immense proportions with all economic indicators pointing to a collapsing economy. The agreement has come at a time when Zimbabwens are exhausted and weary and are leaving the country in droves as they see no prospects for positive change both politically and economically. They see no prospect for change if the regime of Robert Mugabe is not democratically transformed so that it seriously addresses the issues that at the core of the citizen’s needs. The agreement has come in at a time when there seems to be no consensus both at home and abroad on what should be done first in order to deliver change to the people of Zimbabwe.

While there is a general agreement among political analysts both locally and internationally, that the agreement could have given ZANU PF breathing space to re-strategize, entrench itself and ultimately destroy the opposition, there is equally strong arguments that support the agreement and see it as the prescription that will turn the fortunes of Zimbabwe.

Given that the agreement was signed at the behest of the regional grouping, SADC as its under writers, one gets solace in that the regional body would want to ensure that the agreement succeeds. While the history of ZANU PF will vindicate those who argue that the agreement will fail because of ZANU PF’s unreliability and insincerity to the observance of the agreement, it is equally true that ZANU PF has never been subjected to an embarrassing electoral defeat such as the one handed to them by the MDC. This is likely to force ZANU PF to take a serious view of the power-sharing arrangement, as they would want to use it to restore some measure of respectability on the electoral loss suffered at the hands of MDC.

The MDC on the other hand has the opportunity to prove to all and sundry that the future of  Zimbabwe belongs to them and if given the opportunity to govern, they are an excellent alternative. One other aspect that works in favour of the MDC is the economy which seems to have bolted out of the control of ZANU PF and has over a decade shown to be their greatest opposition. ZANU PF cannot and will not turnaround the economy. If as expected under the inclusive government, the economy begins to work positively whether on account of the removal of sanctions or not, credit will go to the MDC. ZANU PF has had its fair share of 29 years of total failure and Zimbabweans are well aware of that.

One argument that has been proffered is that ZANU PF has allocated itself all the powerful security Ministries and will thus prevail over the opposition.  While this might sound true, I do not believe the allegiance and sympathy of Zimbabweans is earned on account of the power of force that one yields but rather on the fulfilment of promises that one has made to the Zimbabwean people. The ball is in the court of the opposition to prove to Zimbabweans that they can walk the talk by fulfilling the promises made over the years during their struggle for the democratisation of Zimbabwe.

An SW Radio Africa headline caught my eye the other day: MDC say they will not be held ‘prisoner’ in unity deal.

The Tsvangirai MDC has moved to reassure sceptical supporters that it will not be held ‘prisoner’ in a government of national unity with ZANU PF. Speaking to Newsreel on Monday, party spokesman Nelson Chamisa said if for any reason the deal failed to work they would have no hesitation in walking out.

Well. The MDC may not be held prisoner. But Zimbabwe Peace Project Director Jestina Mukoko certainly is. She was abducted over two months ago, on 3 December 2008. She was missing for three weeks, with the police claiming not to know where she was. She was found 23 December – in police custody! Since then, she has been accused of “banditry,” and has had a series of court appearances, none of which seem to be getting her any closer to freedom.

Today, High Court Justice Alphas Chitakunye rejected her latest application for bail, saying that he couldn’t grant bail because Jestina “had yet to be advised by a court on her charges.”

So this woman, who was arrested after the Global Political Agreement was signed now won’t be released, after the inclusive government has been finalised? You’ve had this woman, and her six co-accused, for two months and you haven’t even charged them yet?

Surely the issue of these detainees is a litmus test for this new government. Write to MDC-M and MDC-T and remind them that whilst pro-democracy activists remain detained and disappeared, none of us are free, and that the spirit of the inclusive government is flawed. And if you hear back from them, let us know what they say!