Kereke rape: Police must face the music

Obituaries
Charles Warara of Warara and Associates scored a big first in 2015. After a drawn-out fight, he managed to fix a private prosecution certificate to have Munyaradzi Kereke, an influential politician and businessman then but a rape convict now, tried for sexually violating an 11-year-old girl at gunpoint in 2010.

Charles Warara of Warara and Associates scored a big first in 2015. After a drawn-out fight, he managed to fix a private prosecution certificate to have Munyaradzi Kereke, an influential politician and businessman then but a rape convict now, tried for sexually violating an 11-year-old girl at gunpoint in 2010.

corruptionwatch WITH TAWANDA MAJONI

Private prosecution is provided for under Part 3 of the Criminal Procedure and Evidence Act and has been in our statutes for a long time. Warara took it up as the last choice because the attorney general behaved badly. Johannes Tomana, the then attorney general, had refused to prosecute Kereke using the normal channels. But even before that, the police had resisted, kicking and belching, to arrest the former advisor to the Reserve Bank of Zimbabwe (RBZ) governor and deliver him to the process of justice, as must be done.

Tomana was suspended and a tribunal is trying him for alleged abuse of office. It took the intervention of the Constitutional Court for him to issue the private prosecution certificate. The apex court had to rap him with a three-month suspended sentence for refusing to comply with orders from three other courts to do so. The world is anxiously awaiting the outcome of the tribunal’s intervention, yet no-one has bothered to make even feeble noise about the need to deal with the police for their role in trying to frustrate Kereke’s prosecution.

If an individual or agent flouts the law, he/she or it must be prosecuted or disciplined. Police officers clearly did that by handling the Kereke rape case in a brazenly irregular way. There is, therefore, need for them to be scrutinised and prosecuted or tried by a special tribunal or any other agency, just as is happening to Tomana. No one, the offending officers included, will quarrel with this modus ponens.

A revisit of the Kereke rape case, right from the time Francis Maramwidze, the victim’s grandfather, reported the crime in early November 2010 to the time Tomana’s office took over the matter, shows that the law enforcers did many things that they were not supposed to do. And they didn’t do many things that they were supposed to do.

Firstly, they resisted arresting Kereke. They only asked—probably begged–Kereke to visit the police for a warned and cautioned statement. This was done more than a week after the report was made. Arresting a person does not necessarily entail cuffing a suspect, being rude to him or her and throwing him or her into a holding cell. It means restricting his or her freedom over an appropriate period so as to cause that person to help with investigations. It also does not invariably imply detention.

There is nothing that could have stopped the police from arresting Kereke. He was available all the time and they knew where to find him. Ordinarily, police are speedy with arrests when a rape an abundantly serious crime that the law says can attract a life sentence is reported. I have seen ordinary men being readily thrown into the cooler for allegedly raping commercial sex workers or their wives, for instance.

Police inaction in this instance is inarguably criminal. The old Constitution, which was in force when the crime occurred, and the new Constitution that was adopted in 2013 as the rape victim’s relatives still fought for Kereke’s arrest and prosecution, are unequivocal on what must be done when a crime is committed, or suspected to have been committed. Both constitutions, together with relevant statutes, provide that prosecution must be instituted and managed timeously to enable justice for both the accused and accuser.

Arresting Kereke would have helped in ensuring a fair trial in reasonable time. After all, as they say, justice delayed is justice denied. Naturally, delaying the arrest of Kereke, in this case for years, undermined the possibility of a fair trial and the delivery of justice for the poor girl. The collusion to delay Kereke’s arrest abundantly demonstrates that the police officers involved, all the way from senior personnel at headquarters to station details, performed their duties in an improper manner. Even the Police Act has issues with officers who are involved in improper conduct and provides for appropriate action against offenders.

In addition to failing to arrest Kereke as expected, police officers ignored reports of attempts to interfere with justice by Kereke when he visited Maramwidze’s house five times seeking to force him to drop the rape charge. They were also made aware of Kereke’s mother-in-law’s attempt to do the same. Maramwidze formally reported Kereke’s threats against him when the latter refused to withdraw the case. In addition, police officers sought to directly influence the rape victim and her sister to sign documents so as to close the docket. A senior police officer actually attempted to instill fear in Maramwidze by threatening his assassination and that of the rape victim.

There was no convincing explanation why the docket kept being transferred from one police station to the other. I know, for a fact, that there is nothing fundamentally wrong with transferring dockets. But that is only done for good reasons. Granted, the initial report was made at Highlands police station when the offence occurred in Vainona, which is under the jurisdiction of Borrowdale Police Station. But it boggles the mind why the docket had to go to Avondale Police Station at one time, and then to the Criminal Investigation Department (CID) when the rape report was straightforward and forced penetration of the girl had been confirmed.

Besides, it became evident that police officers manipulated the docket by planting and fixing documents and statements. In other words, some police officers falsified documents. We can only guess why they did this, but then, as Kereke’s former boss at RBZ, Gideon Gono, said in February, his ex-advisor had captured an influential network of police officers. Whether he was bribing them or they were simply overwhelmed by his perceived and actual powerfulness is left to conjecture.

Section 56 of the Constitution recognises the right of all persons to be treated equally before the law, and their right to equal protection and benefits of the law. It also bestows on all persons equality and non-discrimination. Section 81 is also explicit where the rights of minors are concerned. Every child, as it says, has a right to equal treatment before the law, including the right to be heard. Constitutionally, as provided for under section 219, the police must detect, investigate and prevent crime.

The above acts of commission and omission by the police officers are thus unconstitutional and, therefore, criminal. Yet, under section 208, members of the police service must act in accordance with the Constitution and other laws and should avoid discharging their duties in a partisan manner, or in ways that violate the fundamental rights or freedoms of any person.

There is no doubt that a good number of police officers who, in one way or another, were involved in the Kereke rape case violated critical sections of the Criminal Law (Codification and Reform) Act. Section 184 of the statute criminalises acts or omissions that involve defeating or obstructing judicial proceedings. By failing to arrest Kereke, threatening witnesses, falsifying documents, seeking to have the rape closed before trial, among other things, the officers evidently acted in ways that sought to derail the course of justice.

The offending police officers certainly assisted Kereke after he committed the rape. As section 206 of the Act provides, if you render to a criminal any assistance which enables him or her to conceal a crime or to evade justice, you are guilty of the same offence. That means the police culprits are, in fact, guilty of rape! This is an addition to other crimes like fraud, of course.

Having said this, relevant agencies must sit up and decide what to do with the police officers who mishandled the Kereke rape case. Section 210 of the Constitution provides for an independent complaints mechanism that must deal with reports from the public about misconduct by members of the security services. I am not sure if we already have one, but the Zimbabwe Human Rights Commission (ZHRC) can come in handy here. Section 242 gives the commission the duty to investigate the conduct of any authority or person alleged to have committed human rights abuses, such as what the officers did by protecting Kereke and seeking to deny the rape victim justice. It can demand redress and prosecution of the police officers.

ZHRC can work in close collaboration with the Police Service Commission, which, besides promoting the welfare and functions of the Zimbabwe Republic Police, also has a duty to see to it that police members comply with section 208 as outlined above. Parliament can also come in to investigate what exactly happened in the Kereke case, realising that it would be too lofty to expect the police to investigate itself. The bottom line is that we must shift from the culture of impunity among police officers by bringing them to book.

Tawanda Majoni is the national coordinator at Information for Development Trust (IDT), a non-profit organisation promoting access to information on public and private sector governance, transparency and accountability, and can be contacted on [email protected].