THERE will be no immediate end to Jestina Mukoko’s legal woes. Last week started with Mukoko’s re-arrest, detention and release.
The arrest followed the issuance of a formal indictment on charges of terrorism. Mukoko had been on bail after months in jail without charge.
While many observers view Mukoko’s indictment as a clear sign of Zanu PF’s intransigence and lack of commitment to the government of national unity, for those of us who have been observing the legal proceedings from a distance, the case also illustrates another tragic element that has largely been overlooked; the steady decline in the quality of legal advocacy in our courts.
In a country where judges delicately divide their time between the bench and the farm; that the quality of legal representation should plummet is hardly surprisingly.
Practicing lawyers, however, also bear a share of the blame and this is manifested as much in the so-called political cases as in any other.
At a time when any criminal lawyer with a client base in the opposition or in the NGO sector has become a human rights champion, legal submissions are increasingly taking the tone of human rights mantra and legal issues are often clouded in political argument only to prolong the suffering of detained clients.
Mukoko’s previous and recent arrests illustrate this all too well. Whether or not the charges against Mukoko have any basis – and going by history, I suspect there is none – it still the prerogative of the Attorney General to charge anyone on reasonable suspicion of guilt.
Every constitution in the world recognises this right. In Mukoko’s case, following an unjustifiably long period in prison without trial, which eventually resulted in her being bailed, early last week, the State finally put its act together (at least procedurally) and formally laid charges.
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Once formally charged, the law is very clear on what would follow. Under the peremptory terms of section 66 of the Criminal Procedure and Evidence Act, unless bailed afresh, Mukoko had to be incarcerated pending trial. This was the unassailable argument of the AG. Roles reversed, Mukoko’s lawyers would probably have made the same argument.
The defence on the other hand, rather than simply applying for bail, which as it turned out was not opposed, chose to attack the indictment on a political front. Its argument, that Mukoko et al should not have been indicted as they were indemnified by the terms of GNU negotiated settlement, would probably have been more compelling before Jomic than in a court of law, and thus predictably failed.
I do not for once suggest that Mukoko’s case is not political. By all accounts, it looks like one. I only argue that political arguments are most effective in political fora and legal arguments in legal fora.
The two, even if interconnected, should not be conflated. Conflating the two will often prolong legal processes unnecessarily. – newzimbabwe.com.
Silas Chekera is defence counsel for Charles Taylor in The Hague.
BY SILAS CHEKERA
