
The court said his abduction by members of the Zimbabwe
National Army, during Operation Restore Legacy in November 2017, was not meant
to extract a confession for criminal offences against him.
Following his arrest and his subsequent appearance in court
on criminal charges, Chombo petitioned the High Court last year, seeking an
order to compel the National Prosecuting Authority and its boss
Prosecutor-General Kumbirai Hodzi to permanently suspend his prosecution
alleging violation of his constitutional rights as enshrined in the Bill of
Rights.
In his earlier application, the former minister said on
November 15, 2017 at midnight, his premises were raided, commando style, by
AK47 assault rifle-wielding soldiers who then forced entry into his main house
where they pointed a gun to his head, handcuffed, chained and blindfolded him
before whisking him away.
Chombo said on November 23, 2017, he was released by his
abductors, but after being dropped at home, he was immediately arrested by
members of the Zimbabwe Republic Police (ZRP), who detained him and eventually
took him to court.
“I have already found that the circumstances under which
the applicant (Chombo) was raided, handcuffed, blindfolded and frog-marched to
a vehicle which took him to an unknown place where he was held captive for
almost nine days, have not been refuted in a meaningful way. I find that indeed
that mistreatment occurred as a result of which there were infringements of the
applicant’s constitutional rights as alleged. The question which arises,
therefore, is whether the appropriate remedy should be an order for permanent
stay of prosecution,” Justice Nicholas Mathonsi said in his judgment.
The violation of Chombo’s rights by the army appeared to
have been undertaken for no discernible reason at all, the judge said, adding
that excessive force and violence was used to capture him leaving a trail of
destruction.
“He was then held for sometime in movie-style while nothing
meaningful was happening except to keep him in isolation for a lengthy period
while extraneous questions were routinely put to him for nothing, but the
amusement of his interrogators. He was not subjected to physical assault and
neither was there an attempt to extract evidence or a confession from him in
respect of the offences he is now facing. It is quite strange indeed,” Justice
Mathonsi said.
“I have no choice in the matter, but to apply the principle
that where the torture or ill-treatment of an accused person prior to charges
being preferred against him or her has not resulted in a confession or the extraction
of evidence sought to be used by the prosecution at the criminal trial, but the
prosecution is relying on other evidence not obtained illegally, the accused
person is not entitled to an order of permanent stay of prosecution even though
he or she was ill-treated or tortured.” Newsday
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