A/HRC/13/42*
page 129
281. Those who were seized mostly reappeared in a number of police stations in Harare on or
around 23 December 2008, after being handed over by the men who abducted them, who were
reportedly members of the security forces. They were then held in police detention, and were
charged in May 2009. Jestina Mukoko and eight others were cleared of the terrorism charges
against them by the Zimbabwean Supreme Court on 28 September 2009. In a blow to
Ms. Mukoko’s abductors, the court ruled that “the State, through its agents, violated the
applicant’s constitutional rights protected under the constitution of Zimbabwe to an extent
entitling the applicant to a permanent stay of criminal prosecution associated with the above
violations”.489
VI. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
282. International law clearly prohibits secret detention, which violates a number of
human rights and humanitarian law norms that may not be derogated from under any
circumstances. If secret detention constitutes enforced disappearances and is widely or
systematically practiced, it may even amount to a crime against humanity. However, in
spite of these unequivocal norms, secret detention continues to be used in the name of
countering terrorism around the world. The evidence gathered by the four experts for the
present study clearly shows that many States, referring to concerns relating to national
security - often perceived or presented as unprecedented emergencies or threats - resort to
secret detention.
283. Resorting to secret detention effectively means taking detainees outside the legal
framework and rendering the safeguards contained in international instruments, most
importantly habeas corpus, meaningless. The most disturbing consequence of secret
detention is, as many of the experts’ interlocutors pointed out, the complete arbitrariness of
the situation, together with the uncertainty about the duration of the secret detention and
the feeling that there is no way the individual can regain control of his or her life.
284. A comparison of past and more recent practices of secret detention brings to the fore
many common features, despite considerable variations in political and social contexts.
1. Emergency contexts
285. States of emergency, international wars and the fight against terrorism - often framed
in vaguely defined legal provisions - constitute an “enabling environment” for secret
detention. As in the past, extraordinary powers are today conferred on authorities,
including armed forces, law enforcement bodies and/or intelligence agencies, under states
of emergency or global war paradigms either without or with very restricted control
mechanisms by parliaments or judicial bodies. This thus renders many, or even all, of the
safeguards contained in criminal law and required by international human rights law
489
“Zimbabwe: Jestina Mukoko - ‘Not bitter, but better’”, IRIN, 1 October 2009. Available
from www.irinnews.org/Report.aspx?ReportId=86392.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents