Michael Mugabe Cannot Prosecute Mukoko and Others

Michael Mugabe cannot prosecute Mukoko and others
May 8, 2009
By Tererai Mafukidze
MICHAEL Mugabe, a state prosecutor and son of President Robert Mugabe’s late brother Donato, recently appeared on behalf of the State in the matter involving Zacharia Nkomo, Jestina Mukoko and many other persons accused of sabotage, espionage, terrorism and recruiting terrorists for military training in order to destabilise the country and remove the incumbent President violently from office.
The recent decision by the State to get the accused persons remanded in custody on the grounds that they had already been indicted for trial has been adequately ventilated elsewhere, with the result that political pressure was exerted on the Attorney-General and the accused persons have had their bail reinstated.
Resorting to political influence to correct even blatant injustices in the courts is a controversial area which is not the subject of my concern in this paper. But I will do well to warn that this practice breeds more evil than good. My present gripe is why Michael Mugabe should be allowed to act as a prosecutor in the matter involving allegations about planned unconstitutional removal of his father’s brother from office.
We should never lose sight of the seriousness with which Michael Mugabe takes his relationship with the President. It will be recalled that sometime in early 2008, a lawyer, Harrison Nkomo, who represents some of the accused persons in this matter was arrested and charged with “insulting the President” after Michael Mugabe laid a complaint against the lawyer with the police. The gravamen of the complaint was that the lawyer had allegedly requested that Michael informs his “father” of the citizens’ desire that he retires from office!
By Shona custom, your father’s male siblings are also your fathers. In the case of death of your biological father, one of his brothers, in fact, becomes your father. This is the status that President Mugabe enjoys in Michael’s life. The harassment and threats to Nkomo’s life that followed prompted the lawyer to take precaution and leave the country for his own safety.
In addition, one of the accused persons is Zacharia Nkomo. Zacharia Nkomo is a blood brother to Harrison Nkomo. As a representative of the Attorney General (the public officer constitutionally charged with prosecuting criminal offences) Michael Mugabe is required to be independent of any political or other influence in making decisions relating to the prosecution of the accused persons. His soiled relationship with Zacharia’s brother is a matter of personal interest to him. Does the prosecutor not have a score to settle with one of the Nkomos at a personal level?
I am would be naïve to believe that the deployment of Michael Mugabe to deal with this matter is mere coincidence. Allocation of sensitive cases is a matter of serious consideration in the Attorney General’s Office. The incumbent Attorney General has publicly announced his political affiliation notwithstanding that he is required to discharge the functions of his office in the public interest, without fear or favour. As a proud member of the sole ruling party at the time, he has a personal interest in the matter and so does the prosecutor he has allocated the case.
Will justice be seen to be done in this scenario?
The right to a fair trial is clearly set out in Section 18 (2) of the Zimbabwean Constitution. The right encompasses many factors that are designed to ensure that a person charged with criminal offences enjoys a fair trial conducted by an impartial tribunal. One of the key persons involved in a criminal trial is the state prosecutor who presents charges on behalf of the State. Such a role is in our law is reserved for a state prosecutor who can objectively, with the necessary detachment and impartiality present the state case. The state case ought to be presented fairly.
The full meaning of the constitutional right to a fair trial in these circumstances was articulated by Chief Justice Gubbay as follows in the 1997 case, Smyth v Ushewokunze:
“Section 18(2) embodies a constitutional value of supreme importance. It must be interpreted therefore in a broad and creative manner, so as to include within its scope and ambit, not only the impartiality of the decision making body, but the absolute impartiality of the prosecutor himself whose function, as an officer of the court, forms an indispensable part of the judicial process. His conduct must of necessity reflect on the impartiality or otherwise of the court.”
And so it is trite in our law that the right to a fair trial is heavily compromised if the prosecutor’s absolute impartiality is not guaranteed.
Chief Justice Gubbay, in the case involving Smyth and Ushewokunze (Prosecutor) set out the qualities expected of a prosecutor in the most erudite terms. Need I add that the judgment in the matter has been accepted in many jurisdictions worldwide as the leading case on the subject! Smyth had approached the highest court in the land seeking the removal of Ushewokunze as the prosecutor in his case. He alleged, among other things, that the prosecutor was waging a vendetta against him, allowing false allegations to be presented in court, threatening his arrest and making spurious allegations which the prosecutor knew to be untrue. The learned former Chief Justice citing various authorities put it as follows:
“A prosecutor must dedicate himself to the achievement of justice. He must pursue that aim impartially. He must conduct the case against the accused person with due regard to the traditional precepts of candour and absolute fairness. Since he represents the State, the community at large and the interests of justice in general, the task of the prosecutor is more comprehensive and demanding than that of the defending practitioner. Like Caesar’s wife, the prosecutor must be above any trace of suspicion. As a “minister of the truth” he has a special duty to see that the truth emerges in court. He must produce all relevant evidence to the court and ensure, as best he can, the veracity of such evidence. He must state the facts dispassionately. If he knows of a point in favour the accused, he must bring it out. If he knows of a credible witness who can speak of facts which go to show the innocence of the accused, he must himself call that witness if the accused is unrepresented; and if represented, tender the witness to the defence. If his own witness substantially departs from his proof, he must, unless there is special and cogent reason to the contrary, draw the attention of the court to the discrepancy, or reveal the seriously contradictory passage in the statement to the defending practitioner.”
Considering the political shenanigans that surround the abduction, detention, torture and ill-treatment of the accused persons by faceless state agents, it is most shocking that the matter would be handled by a prosecutor closely related to the President.
Will Michael Mugabe, aware of the huge political interest his father’s brother has in the matter, exude the necessary objectivity desired of a state prosecutor? Will he readily present evidence essential for the investigation of the truth if that evidence favours the accused persons like Zacharia Nkomo and Jestina Mukoko.
Jestina’s detention has been a major point of discussion and debate between political figures in Harare including his relative. The huge interest his close relative has in the matter is obvious as Robert Mugabe would have been the biggest victim of any of the alleged actions against his government.
In the same way that Ushewokunze was ordered off Smyth’s case on the grounds that the prosecutor was biased against the accused person, Michael Mugabe must be immediately ordered off the case. His closeness to the President who has a significant interest in this matter is likely to affect his objectivity, detachment and impartiality required of those that prosecute crimes on our behalf. The fact that Harrison Nkomo’s brother is one of the accused persons may invite ulterior considerations in the prosecution of the matter. This will result in the trial of the accused persons becoming a charade that is conducted to satisfy subjective interests of other persons.
It may be that Mugabe will do his job well as his professional obligations require him to do. Yet it is hard to imagine his participation in this case escaping public doubt and suspicion in the circumstances of this case. It is difficult to imagine any other situation that merits the old cliche that justice must not only be done, but must be seen to be done.
As Chief Justice Gubbay eloquently put it for the full Supreme Court bench:
“Like Caesar’s wife, the prosecutor must be above any trace of suspicion.”
(Tererai Mafukidze is a Zimbabwean lawyer who lives in Johannesburg. He can be contacted on tereraim@gmail.com)