The story of Beatrice Mtetwa: A Red Herring ?

Activism, Democracy, Gender, Governance, Human Rights, Politics, Zimbabwe

Right in the middle of a historical exercise, the holding of a Constitutional Referendum- something monumental had to happen. Merely a few hours after voting had ended, the Zimbabwe Republic Police (ZRP) -in its unfathomable and incomprehensible wisdom-decided to arrest Beatrice Mtetwa. Previously I wrote about Beatrice in my Feminist Chronicles, having identified her as one of the most influential women in Zimbabwe, whose bright intellect and sharp and keen sense of reasoning was above many.

Given her history as a strong advocate for the weak, the defenseless and the vulnerable and also given her strong will to take on cases that many cowered away from, it is no wonder that she made it to the top of the regime’s WANTED list; a regime that is scared witless of its own population yet so boastful of its popularity.

The facts of the case…

Beatrice was arrested on the morning of Sunday the 17th of March 2013 in the line of duty, attending to her client Thabani Mpofu. Thabani’s home was being searched (read raided) by the police as they searched for what we have popularly come to know as “subversive material.” But who knows what that subversive material is; it could be anything from radios to smart phones to information packs, but a little bird whispered in my ear that Thabani was in the middle of putting together a dossier with evidence of corruption of some political big wigs, a job that the police believe is strictly theirs to do, hence the charges of impersonation leveled against him.

What is the law regarding search warrants

The Public Order and Security Act in Section 39 provides that the arrest or search of any person or premises shall be carried out in line with the Criminal Procedure and Evidence Act. The Criminal Procedure and Evidence Act in Section 49 as read with Section 50 demands that the police may only search premises and seize articles suspected to have been used or intended to be used for the commission of an offence with a valid warrant of search issued by a magistrate or judge. Section 50 (4) of the Criminal procedure and Evidence Act states that a person whose rights are affected by the search can demand to see the warrant, AFTER THE POLICE HAVE EXECUTED THE WARRANT, and the police are obligated to produce such a warrant. As the legal representative of the accused, Beatrice had every right to demand to see the search warrant, but the question is did she demand to see the warrant before or after the police were done with their job?

Presumably, the answer is no and we can assume that she demanded to see the warrant during the search before the police were through with their search which is why the police then accused her of obstructing the course of justice. But given that, half the time, the police in Zimbabwe carry out arbitrary searches and seizure and arrests, any lawyer of character would do under the given circumstances what Beatrice did.  This probably explains why Justice Hungwe, a judge in the High Court of Zimbabwe ordered her release.

However there remains no valid explanation as to why Beatrice remains in police custody despite the order for her immediate release. There is also no explanation as to why she has been moved from police station to police station since then in the typical fashion that the police have adopted to deny an individual under interrogation access to their legal counsel and/or relatives. This same tactic was employed against Jestina Mukoko and has been observed in many trends where political activists and human rights defenders have been arrested.

Is this arrest an end in itself or a means to an end?

Theory One…

A week ago IDASA launched the Democracy Index for Zimbabwe, an analysis of the state of democracy in Zimbabwe. In the Chapter on Political Freedoms and Democracy that I wrote, one of the questions informing the analysis was “How free are all people from intimidation and fear, physical violation against their person, arbitrary arrest and detention?”  In my response, I explained that despite Constitutional guarantees for such freedom, the state continues to use its security apparatus to silence dissenting voices, targeting the few vocal and visible individuals to serve as an example and unleash a silent indirect threat to the rest of the faint and weak-hearted. So I would not be surprised if Beatrice’s arrest is just but another example of that.

Theory Two…

When the process of writing a new constitution began, it ignited hope in many Zimbabweans that a new dispensation in which the rule of law would be restored was on its way.  However during the whole era of the inclusive government that particular hope has been dashed and continues to be dashed. Could it be doubted that the arrest of Beatrice is a clear message to the few hopefuls that NOTHING has changed and won’t change. This form of intimidation will continue to be the order of the day even with a new constitution with a broader Bill of Rights.

Theory Three

The arrest of Beatrice Mtetwa could be a red herring. Don’t get me wrong, that is not to trivialise the enormity of what is being done here or what it means for women human rights defenders’ safety and security. But maybe those who instigated this arrest are drawing attention away from the Referendum, with the strange and ironic  contradiction of voter apathy in city centres where people had access to the draft, to the press, to political commentary online about the contents of the constitution as compared to the high (if I may abuse the word -voluminous) turnout in the areas with citizens who had the least access to the media in the form of newspapers, radio and televisions. Were they saying, “YES we don’t know what’s in the constitution but we will vote for it anyway” or  were they forced to say “Yes” or were they genuinely saying “YES we want the draft to be the new Constitution because we agree with its contents”? There is no prize for guessing which it is likely to be! But also maybe Beatrice’s arrest is targeted at drawing the world’s attention away from how a flawed process resulted in the flawed adoption of a flawed document courtesy of political parties’ turnabout from fighting for independence, freedom and democracy to POWER.

Maybe, these are just what they are-theories -but I shall not wait for history to condemn my silence where I could have spoken-and so I have spoken, standing in solidarity with Beatrice and calling for her release- as any law abiding Zimbabwean would.

24 thoughts on “The story of Beatrice Mtetwa: A Red Herring ?

      1. Beatrice told me while interviewing her for the film about her work that the more outraged she gets at the government in Zimbabwe, the more resolved she gets fight against it. I asked her if she was afraid at times. “The fear is there,” Beatrice said, “but if everyone does nothing, things never change.”

  1. “”Pesumably, the answer is no and we can assume that she
    demanded to see the warrant during the search before the
    police were through with their search which is why the police
    then accused her of obstructing the course of justice. But
    given that, half the time, the police in Zimbabwe carry out
    arbitrary searches and seizure and arrests, any lawyer of
    character would do under the given circumstances what
    Beatrice did. This probably explains why Justice Hungwe, a
    judge in the High Court of Zimbabwe ordered her release””.

    From the above paragraph i can easily single out words like-
    presumably,assume,probably thus showing me that you actually don’t have the facts yourself so why rush to give your judgement whilst you actually don’t have the facts?Maybe she is involved in something that threatens national security and shldnt be revealed to the public so don’ t rush into conclusions.I can see you people have got preconceived opinions about the legal procedures in this country and you think what happens in the movies is what actually happens in the so called democratic nations.
    We all saw George Bush and Tony Blair making an unsanctioned invasion of Ilraq so relax guys…relax.

    PROUDLY ZIMBABWEAN…

    1. I can’t claim to have all the facts when I was not at the scene. I worked with what her lawyers said and the arguments they made before the judge of the high court. I also know for a fact that a magistrate and the police used a legal technicality to disregard the order of a high court judge to release Beatrice, arguing that the order was directed at the police yet Beatrice was in the custody of the Court not the police. I call that politricks.

      As for the West and their legal system you will be happy to know I avoid watching American legal films because their system is far too divorced from ours.

      And yes I am aware that the West has a terrible history of disrespecting their own laws. I have deep knowledge of the renditions re Guantanamo. I do not condone it. I hope you are not suggesting that it’s ok for us to do the same because they also do it!!!

      As for being proudly Zimbabwean, believe you me I am one proud Zimbabwean. I am however deeply ashamed of how our politicians keep dragging our beautiful name through muddy waters.

      Thank you for your comment!!

    2. Tichaona >>>The police have not come out to say what ‘SHE’ Mrs Mtetwa has done, this leaves us to imagine the obvious cases. Knowing our Justice system, Politics and Police I would say this is the unconfirmed truth.
      The country need less Mai Jukwas and less pple with the kind of attitude potrayed in your comment. The Police should be clear on the circumstances and the charges against her. The Police should also respect Court orders.

      “Maybe she is involved in something that threatens national security and shldnt be revealed to the public so don’ t rush into conclusions” <<< I can hardly name any rational Police that classifies demanding a Search Warrant a threat to National Security. This is the real reason she was arrested or is it not? The Cops were not at her house!!! So @Tichaona In the mean time, by all means Support the ZRP on this while Mrs Mtetwa spends more time in prison being subjected to God knows what for God knows what reason and when its your turn we wont Judge you, we will stand by you!

      PROUDLY ZIMBABWEAN!!!!

  2. I’m a little concerned, how can the law demand the warrant after the search?? Maybe I’ve been watching too many movies but it makes more sense to show it before, because what happens if the police don’t have a warrant? they can still search your house and then what?? as much as we can argue to the inadmissability of the evidence, we’ve already seen how selectively the law is applied here

    1. Trish, thanks for your comment and we must be a whole lot concerned because that provision is part of the problem. Yes the norm is for a warrant to be produced before the search begins. But hey, THIS IS ZIMBABWE. Nothing is ever done the way it’s done elsewhere. In law we would say Zimbabwe is sui generis (of its own kind (form/character/behavior). In fact I am sure the reason that provision exists is so that arbitrary searches and seizures may be done lawfully. So they ware done according to the law in violation of the individuals concerned’s rights and who cares-the state clearly doesn’t care.

  3. Thank you for your article. What are our judges doing about this continued blatant disregard for the rule of law? How much longer are they going to allow their judgements to be over ruled / thwarted / bent silly by political pressure/ ignored? Surely the time must come when they too band together and say enough!!

    1. Thank you for your comment. For as long as judges feel their tenure is dependent on the level of their political “correctness” then I guess this trend will continue. Sadly, the new constitution doesn’t make it any better so we are likely to see this trend continuing for a while…

  4. indeed the clock is ticking. I feel that the real issue here was the arrest of Thabani etc for the work that they were doing. Beatrice’s arrest at that moment in time was opportunistic. My theory therefore would be that the authorities are giving the 2 finger salute to the new constitution and they have no intention of abiding by any of its improvements. What is interesting to note is the silence of the judges in the face of their own judgements being ignored. Where is their moral backbone?

    1. You are right. All things being equal, the judge was supposed to summon the magistrate who heard the case for disregarding the High Court Order. Clealry the whole judicial system is flawed and powerless.

  5. Thank you for writing this piece and for sharing with us your thoughts. I am no longer surprised by our police force unless the top brass resigns…that would be a real shocker even more shocking would be the firing of it!!! Even my own eyes widen at this thought. When will our leaders be serious about ensuring the rule of law? Surely, the courts passed judgement and the law enforcers must comply yet the law enforcers are now putting on judges’ regalia and playing cat and mouse games…that time is coming to an end. I hear the tick tock. I think all your theories are true in some respects.

    and yes, people did vote YES in some areas because they were told to do so without any further explanations…the time is coming….tick tock

    “Free Beatrice Mtetwa now!!” we wont stop speaking out

  6. Thank you for this thoughtful article about Beatrice…please share with your followers this trailer for the just completed film Beatrice Mtetwa and the Rule of Law co-produced by Hopewell Chin’Ono and myself. We are looking for distribution now. You can follow us @ruleoflawfilm and Like/Share on FB Beatrice Mtetwa and the Rule of Law…thanks much and may Zimbabwe experience real change very soon. Lorie Conway, bostonfilmvideo@gmail.com

      1. We must stand in support of Beatrice and peacefully demand her release. For years she has been there for others– risking her life, upholding the law, often without getting paid. Beatrice Mtetwa’s arena may be Zimbabwe but her message and bravery are universal. Free Beatrice. Now.

      2. Indeed we ought to stand with her, it is quite sad really and infuriating that being a principled, fearless lawyer in Zimbabwe, whether under the inclusive government or not is such a great risk.

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