Zimbabwe Attorney General In Shock Move

Jestina Mukoko and her fellow abductees arriving at court on December 24 last year, the first time they were seen in public after they had disappeared from their homes and places of work. They had been held incommunicado for up to three months, with the police saying they did not have them in their custody. The case against them (a banditry charge) was quashed by the Supreme Court because their "arrests" had been illegal and the group is now suing the Minister of State Security and his fellow conspirators for the abductions and illegal detentions. The State has abandoned the Minister, refusing to defend him in the lawsuit.

Harare, Zimbabwe, 11 October 2009

Johannes Tomana, the Zimbabwe Attorney General, under fire from the MDC, Morgan Tsvangirai and Tendai Biti who want him fired, has, in a shock move, left the Minister of State Security, Didymus Mutasa, exposed in the courts, refusing to defend him in a lawsuit filed by Jestina Mukoko and others.

Mukoko, who was facing charges of recruiting bandits to topple "The Solution" Mugabe, had the case against her quashed by the Supreme Court of Zimbabwe on the basis that her abduction was unlawful. The Court ruled that her rights had been violated by the abduction.

Tomana's decision is informed, I understand, by the fact that the Supreme Court ruled Mukoko's detention illegal, which means that the actions of the Minister, a Brigadier-General and a senior police officer who knew about the abductions, were extra-judicial.

The Attonery General, therefore, was put in a quandary. If he defended the Minister in the lawsuit filed by Mukoko and others, he would basically be sanctioning the extra-judicial detentions of the abducted persons.

Put another way, the AG, if he defended Mutasa and the other accused, would be telling the world that the State stood by the illegal detentions and violations of the rights of Jestina Mukoko and her fellow abductees.

This would further discredit the already tattered image of the Attorney General's office further.

By distancing himself from the actions of the Minister and his co-conspirators, the Attorney General is distancing the State from their illegal behaviour. Which can only be a good thing.

The Minister will now have to find private lawyers to defend him.

I doubt that he will pay the expenses out of his own pocket, though. The government will foot that bill.

If the AG had gone ahead to defend Mutasa, he would have found himself in an impossible position, because the illegality of the detention of Jestina Mukoko has already been established by the highest court in the land.

How then could he defend such a case?

What it means is that the Zimbabwe Attorney General is attempting to show that he at least has some shame.

One interesting aspect of this shock move by the Attorney General is that it says to the world that the actions of the Minister of State Security were not sanctioned by the State.

Mutasa, in effect, acted outside of his mandate as a State official and the State, therefore, can not defend him without itself becoming a defendant.

As things stand now, Mutasa has been cut loose by the State, which essentially says that he acted not only illegally, but also only in his personal capacity.

But, knowing Mugabe, and as I have said before on this blog, it is unlikely that the Minister will face the full wrath of the law.

One lawyer was telling me last week on Tuesday that even if someone is successful in suing the State, they rarely, if ever, get the damages awarded to them. The State simply refuses to pay and keeps giving excuses.

This is one possibility in this case. However, the important thing will be that, morally, Jestina Mukoko would have scored a victory.