ON 1 June 2020, Zimbabwe Republic Police arrested, charged and detained Advocate Thabani Mpofu on allegations of defeating or obstructing the course of justice.
Advocate Mpofu presented himself in the company of his lawyer Beatrice Mtetwa to officers stationed at Morris Depot, Anti-Corruption Unit.
Advocate Mpofu had received information that about eleven (11) armed officers had visited his home during the evening of 31 May 2020 searching for him. Advocate Mpofu has since been charged with contravening section 184(1)(a) and 184(1)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Allegations against him are that he drafted an affidavit on behalf of Simbarashe Zuze, who is said not to exist, and falsified that it had been sworn before Choice Damiso, then filed it at the Constitutional Court in a matter challenging the appointment of the Prosecutor General. He is further alleged to have filed a second Constitutional Court application (Case Number CCZ 3/2019) in connivance with Joshua Chirambwe, upon realising that the first application had failed, containing duplicate information from that contained in the affidavit of Zuze in a bid to stop enquiry into the existence of Simbarashe Zuze thereby defeating the judicial proceedings. Advocate Mpofu has since been detained at Rhodesville Police Station.
ZLHR notes that the court application mentioned in the allegations, Case Number CCZ 3/2019 is still ongoing at the Constitutional Court and the court has not provided a judgment in this case. The Constitution of Zimbabwe provides for the separation of powers between the three arms of government, the Judiciary, the Executive and the Legislature. The arrest of Advocate Mpofu in relation to a case that is ongoing before the Constitutional Court and yet to be finalised is an assault on the principle of separation of powers. As a lawyer, Advocate Mpofu has a right to practice a trade or occupation of his choice as provided for under section 64 of the 2013 Constitution. When practicing his trade, he must do so without fear or favour.
ZLHR has documented several cases involving its lawyers who were subjected to arbitrary arrest and detention and facing similar charges of obstructing justice – all of which came to naught in the past.We are well aware of the Machiavellian tactics of the law enforcement agents and other state institutions who have everything to fear from lawyers who represent their clients without fear or favour and insist on full compliance with the law and constitutional safeguards.
State institutions and actors must understand that lawyers are officers of the court. They have rights to carry out their professional duties without hindrance, and these rights should be understood and respected. Lawyers should not be associated with their clients’ cause and must be protected, rather than vilified and subjected to such criminal and degrading behaviour.
It must also be recalled that sections 70(1)(d), 69(4), 50(b (i) and (ii) of the Declaration of Rights, in the Constitution of Zimbabwe guarantees the rights to legal representation of one’s choice in criminal and civil matters as part of ensuring the fundamental right to protection of the law.
Regionally, the African Charter on Human and Peoples’ Rights – to which Zimbabwe is a state party, and the African Commission on Human and Peoples’ Rights Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa reaffirm these rights. The UN Basic Principles on the Role of Lawyers further elaborates on obligations of the state to provide guarantees for the functioning of lawyers who must do so without fear of harassment, intimidation or be threatened with prosecution for conducting their duties. The arrest of Advocate Mpofu is an attack on the legal profession.
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