When we told our SMS subscribers that the MDC had agreed to join the inclusive government, the response was largely relief. People sent us messages saying things like “Thank God,” “at last,” and “This is a good move.”

But three weeks into the new government, the cracks are beginning to show. The arrest and ongoing detention of Roy Bennett, Deputy Minister of Agriculture designate, is particularly worrying for many of our subscribers. Here are some of their responses to the news of his arrest:

As head of government Tsvangirai should enlighten us on the circumstances leading to Bennett’s arrest. Has he been criminal or an enemy of government? Why include him in cabinet when he has arrest warrant? Moreover I think there was a clause telling us to forget the past and open a new chapter in their speeches. If we need to prosecute for past crimes then the whole Zanu PF hierarchy should be arrested.

——

Bottom line. Bob has to go. Sorry

——
This is totally unacceptable. Let us walk out of this farce.

——

What charges are they arresting Bennett? Otherwise this inclusive government is a bluff. Tsvangirai might have been corrupted and sold out. The much needed rescue package is gonna not materialise. So the set up is a failure. We still at zero. If there is no selling on Tsvangirai ‘s part let him be the first protestant so that we have direction otherwise we need to further study the set up before we conclude anything.

——

Zanu is undermining the very fragile Political Agreement by arresting a Dep. Minister nominee. They always want to complicate situations. They should release him.

Zimbabweans are desperate for water no matter where they are. In this picture Linette Frewin captures the wait for water in Beitbridge.

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.

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!

In an effort heed the advice of many of the people who have commented on my MDC sell outs blog, I’ve been reading up about what others have to say about MDC-T’s decision to join this new “inclusive government.” At the suggestion of my colleague, I thought I could make a little table – one column with commentators in favour of this move, the other column citing those more sceptical about it.

Unfortunately, my table as it stands is weighted heavily with the sceptics. And currently all the commentators I’ve seen referenced are men. I haven’t included any leaders of the parties that signed onto the deal, my theory being that of course they’d argue in favour of it; they signed it.

Anyone want to point me in the direction of a few more optimists?

Optimists

Tawanda Mukakiwa, a vendor – “This is a real attempt to address the crises in the country and in that respect the move deserves credit.”

Alex Magaisa – “The only hope is that should it join, the MDC will try to be to any opponents what Zanu PF was never able to manage when the MDC was in opposition. If that is possible, then at least the new arrangement would have achieved one important thing: to free space for political activity and therefore create a culture in which democracy can potentially thrive.”

——

Sceptics

John Makumbe – “The desperate people of Zimbabwe deserve better than a political fix that will keep Robert Mugabe in power.”

Wellington Chibhebhe – “A casual glance at the power-sharing pact only gave the MDC ‘administrative work’.”

Dale Dore – “No to the power-sharing deal! No to collusion with the Mugabe dictatorship!”

Brian Kagoro – “Firstly, there’s nothing national about it, secondly there’s absolutely no unity in it. So as an exercise in futility it’s a waste of precious time.”

Tendai Dumbutshena – “After the June 27 putsch by Robert Mugabe signs were always there that the MDC were headed for surrender. It officially happened on January 30, 2009 when the party hoisted a white flag on top of its Harvest House headquarters. What followed was a pathetic attempt by MDC leader Morgan Tsvangirai to portray this decision to join the unity government without any of their conditions
being met as some sort of victory.”

Lovemore Madhuku – “It’s catastrophic. In so doing, Tsvangirai undermined the intention of the MDC to have a complete change.”

——

Reserving Judgement

Takavafira Zhou – “It brings hope on the surface that there may be better things to come and at the same time we remain sceptical.”

Daniel Molokele – “The big question that remains to be answered is whether or not the decision by the MDC to join up with Zanu-PF was a strategically wise one or not. Well as they say, the jury is still out on this one. Only time will tell!”

To temper my scepticism over this inclusive government, I’ve been reading what some of our subscribers have to say about it via SMS. I may not agree with all of them, but they are certainly hopeful. Here are some of the text messages we’ve received about Friday’s deal.

I think its a good move we a going to dismantle ZANU from inside. SADC PF has lost credibility both localy regionaly & internationaly.

–

Is that a gud idea?

–

Thank god for the agreement

–

Thank u very much. Tambai tsoro with honesty to the people…The suffering

–

What about the people abducted and jailed