BULAWAYO High Court judge Justice Martin Makonese has declared a three-week detention of an army deserter at Imbizo Barracks while awaiting a court martial unlawful and a violation of his constitutional rights to freedom.
SENIOR COURT REPORTER
Justice Makonese made the ruling after former soldier Mlindelwa Gezani Vuma filed an urgent chamber application through his lawyer Kossam Ncube of Kossam Ncube and Associates challenging his indefinite detention at the army barracks without a court martial being convened.
“The respondents be and are hereby ordered and directed to facilitate the immediate release of the applicant from the Imbizo Barracks, Bulawayo, or from any other military detention facility in the country the applicant may at any time be detained pending the trial and finalisation of his matter by the court martial,” ruled Justice Makonese.
The commander of Bulawayo district and Zimbabwe National Army commander were cited as respondents.
In his founding affidavit, Vuma, who deserted the army in 2007, said he was arrested on July 13 this year while at Nketa shopping centre by a member of the military police and has been in detention since then.
“On July 14 2014, I was transported to Imbizo Barracks where I was detained and, in fact, have been in detention ever since.
“I am advised that my constitutional rights have been violated in that I have been detained for more than 48 hours and have not been brought before any court of law.
“I am advised this is in contravention of Section 50 (2) (b) of the Constitution of this country. I am further advised that I am entitled to immediate release in terms of Section 50 (3) of the Constitution,” wrote Vuma.
He said his indefinite detention was not only inhumane, but blatantly unlawful and malicious.
“The balance of convenience favours the granting of the relief sought in that I am being held in indefinite detention pending the constitution of a court martial on an as yet unknown date.
“The court martial is not a permanent court, but is periodically constituted to deal with particular matters,” he wrote.
“As matters stand, no one has a clue when the court martial that deals with my case shall be constituted to handle the matter.
“This then means I have to remain in detention until such a time in future that the court martial is ready to deal with my
“I am the breadwinner of my family with two children who depend on me for their livelihood and my continued incarceration has detrimentally affected my family. Further, any continued incarceration will most certainly mean loss of my job which would spell dire consequences for my family in these trying economic times,” Vuma said.