On Friday 4 April 2008 one Dorcas Mpofu, a ZEC constituency election officer, was arrested and detained by police in Mberengwa. A lawyer deployed by ZLHR was denied access to her by police, in contravention of her rights under the Constitution of Zimbabwe. She has since been charged under section 174 of the Criminal Law (Codification and Reform) Act (”the Criminal Code”) with criminal abuse of her duty as a public officer, in that she allegedly intentionally committed an act or acts contrary to or inconsistent with her duties as a public officer. The maximum sentence in the event of conviction is a level 13 fine and/or 15 years’ imprisonment. She was made to sign a warned and cautioned statement without the assistance of her legal practitioner, after which she was released. Subsequently, however, she was taken back into custody and advised to make an application for bail at the Magistrates’ Court on Monday 8 April 2008. The ZLHR lawyer attended at the Magistrates’ Court on Monday 8 April 2008 and was again denied access. He was later informed that her superiors had ordered her to engage an alternative lawyer when they were informed that the lawyer present was a member of ZLHR.
2. On an as yet unconfirmed date one Virginia Sibanda, a ZEC election officer working in Lupane, was arrested. She was due to appear in the Bulawayo Magistrates’ Court on Tuesday 8 April 2008. The advocate deployed by ZLHR to represent her advised ZLHR that the police were not cooperating with him and did not allow him to peruse the docket to establish the precise allegations, again in contravention of the Declaration of Rights in the Constitution. He was only able to establish that the accused person was being charged with breaching section 136(a) of the Criminal Code. This is the crime of fraud, where any person who makes a misrepresentation intending to deceive another person or realizing that there is a real risk or possibility of deceiving another person faces a maximum penalty of a fine not exceeding level 14 and/or imprisonment not exceeding 35 years. In the alternative, she was charged with allegedly contravening section 174(1)(a) of the Criminal Code, as in the previous case.
3. On an as yet unconfirmed date one Shadreck Mufute, a ZEC elections officer who was stationed at Ward 25 in Mutasa South was arrested in Mutare and charged with fraud under section 136(a) of the Criminal Code, alternatively contravening section 87 of the Electoral Act, as amended in that he allegedly willfully failed to perform his public duty. His warned and cautioned statement was recorded on 7 April 2008 but had not been finalized due to lack of power (ZESA) at the police station. He appeared in the Mutare Magistrates’ Court on Tuesday 8 April 2008 where he was represented by a ZLHR lawyer. The lawyer and the prosecutor initially agreed on bail, but in court the prosecutor opposed bail, advising the ZLHR lawyer that he had instructions to vehemently oppose bail due to the political sensitivity of the matter. Mufute was remanded in custody pending the handing down of the magistrates’ ruling today.
4. On an as yet unconfirmed date one Pius Chikwata, a ZEC elections officer, was arrested in Nyanga and charged under section 174(1)(a) of the Criminal Code. A ZLHR member was deployed to appear on his behalf on Tuesday 8 April 2008 and successfully applied for bail. Chikwata was released on payment of $30 million bail.
ZLHR wishes to express its grave concern on these developments.
First, all arrested persons have fundamental rights in terms of the Constitution to be represented by a lawyer of their choice. This becomes even more critical where the possible sentence in the event of a successful prosecution is such a severe term of imprisonment. The police continue to exhibit complete contempt for the Constitution and accused persons’ rights, with impunity and they must be made to answer for such action without delay. Lawyers should be allowed to perform their official duties without hindrance, as is stipulated in national laws and international treaties to which Zimbabwe is a State Party.
Second, due to the severe and unjustifiable delays by the Chief Elections Officer in announcing the results of the presidential election, the electoral process is not yet complete. As such, these arrests constitute executive interference in the work of a purportedly independent institution, and must therefore be condemned in the strongest possible terms. The actions of the police and their commanders smack of intentional intimidation of officers of an electoral body and can be considered to be an attack on ZEC’s integrity and ability to complete its constitutional duties without fear or favour, which is already in dispute.
Third, one must question how the disputed election returns forms found their way from the possession of ZEC officials to police stations around the country, especially when the verification and tabulation process is not yet complete and the results have not been announced and made publicly available. All returns were signed as correct by representatives of political parties present thereat, and one wonders why suddenly the contents of the forms are being disputed.
Finally, the fact that the Chairperson of ZEC has not publicly denounced such attacks could lead to the perception in the mind of an ordinary and interested voter or member of the public that either the hierarchy of the Commission is fearful of retribution in the event of speaking out, or that they are complicit in these actions as a means of diverting attention from its failure to announce the presidential election results. The Chairperson of ZEC must immediately and publicly condemn such intimidatory tactics.