Mutasa must name Jestina Mukoko’s abusers or shut up

By Silas Chekera

Last week, Saturday, the Daily News carried a story in which former intelligence Minister, Didymus Mutasa, reportedly threatened to name some of the persons who allegedly abducted and tortured former broadcaster and human rights activist, Jestina Mukoko.

But for fear of running foul of the Official Secrets Act, Mutasa “is prepared to name out some of the ZANU PF thugs who have been fingered in the abduction and torture of innocent Zimbabweans over the years”, the newspaper reported.

Mutasa, since estranged from the ruling party and now fronting the recently launched, Zimbabwe People First, led by former Vice President Joyce Mujuru, is also reportedly prepared to disclose the identities of Mukoko’s alleged assailants to her in private.

If Mutasa wants to be taken seriously as the born again politician he now presents himself as, he should come clean and stop prevaricating. He must either name the alleged criminals or zip up. For one, if the reason for his silence is his alleged fear of the Official Secrets Act, then, it makes no difference at all whether he names the alleged criminals from the top of the mountain or in private.

At law, unlawful disclosure is unlawful, whether to one or to a hundred. If he is prepared to tell Mukoko who her alleged abductors and torturers are, then he might as well tell the world. Secondly and more significantly, at law, Mutasa has nothing to fear in naming the alleged culprits. No law protects persons who abduct and torture private citizens. Or anyone for that matter! Not even the Official Secrets Act.

While it is true that the Official Secrets Act prohibits the communication of certain privileged information, that prohibition is not absolute. Section 4 only prohibits the communication of official secrets “to any person, other than a person to whom he is authorized to communicate it or a person to whom it is in the interests of Zimbabwe his duty to communicate it”, or using “such information in any manner or for any purpose prejudicial to the safety or interests of Zimbabwe”.

At law, naming the alleged culprits so that they may be investigated and prosecuted, if not by the state, through a private prosecution, would therefore not be prohibited disclosure. Quite the opposite, it would be for the safety and in interest of the people of Zimbabwe that known culprits, seemingly shielded by the powers that be, should be prosecuted.

In this context, it is important to highlight that Zimbabwe has an obligation to prosecute alleged perpetrators of torture both in terms of our own laws and in international law. In terms of the Constitution, the supreme law of the land, which admits no derogation, “no person may be subjected to physical or psychological torture or cruel, inhumane or degrading treatment or punishment”.

The Criminal Law (Codification and Reform) Act, on the other hand, contains several crimes “against the person”, which include physical and sexual assaults and the infringement of liberty (kidnapping and unlawful detention).

In international law, Zimbabwe also made a commitment to prevent, criminalize, investigate and prosecute acts of torture. The country signed a number of international treaties, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and closer home, the African Charter on Human and People’s Rights; all of which prohibit torture in absolute terms.

Besides, even if Zimbabwe had not signed these international treaties – which, critics argue, it often does for window dressing purposes – in international law, torture is now regarded as a crime under international customary law. This means that torture is now universally condemned the world over and must be prevented or prosecuted by every country wherever and howsoever it occurs.

In these circumstances, it would therefore be rank hypocrisy for the government to victimize Mutasa for outing alleged abductors and torturers. The government cannot be seen to be using (or more appropriately, abusing) the law to protect known criminals. That would violate our Constitution, or own laws and international law.

That said, it must be conceded that Mutasa may have a lot to fear. As a former senior member of the ruling party and government, and as former intelligence Minister, he probably knows all too well how the government operates and how it deals with dissenters and political opponents. Moreover, our own past is replete with ill-fated criminal prosecutions, which independent observers say were pursued for purely political purposes.

Recall Dumiso Dabengwa’s prosecution in the 80s, Morgan Tsvangirai’s infamous treason trial, Tendai Biti’s arrest in the 2000s, the hordes of MDC supporters routinely hauled to court in stitches and blood-stained bandages for ‘assaulting’ ZANU PF supporters or for ‘fanning’ political violence. The list is long, embarrassing and repugnant.

Yet, one could still argue (though regrettably) that if arrest be the price Mutasa should pay for a libertarian state he now purports to embrace, so be it. There is even some poetry to it. Poetic justice. Politically, arresting Mutasa for violating the Official Secrets Act (if it comes to that) could even work to his advantage.

It could be his official baptism into opposition politics. He would join the swelling list of latter day political martyrs, which should help cleanse his own soiled past.  His Didymus, oops, ‘Damascus’ moment.

Comrade Mutasa, must therefore spill the beans or forever hold his peace. He cannot have his cake and eat it. The electorate is wiser.

Silas Chekera is a lawyer with considerable experience in international law. He contributes to different newspapers on topical legal issues.