APPEAL No. RS (Zimbabwe – Desertion – Movement for Democratic Change – Fair Trial ) Zimbabwe [2004] UKIAT 00099

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 23 March 2003

Date Determination notified: 03 May 2004 

Before

Mr C P Mather (Vice President)
Mrs A J F Cross De Chavannes

Between

RS	APPELLANT	
and	 	
Secretary of State for the Home Department	RESPONDENT	

For the appellant:	Miss P Muquit, of Counsel, instructed by the Refugee Legal Centre
For the respondent:	Mr G Elks, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	The appellant, Raymond Mtongi Siyamufinya is a citizen of Zimbabwe.   With permission, he appeals the determination of an Adjudicator (Mr C J Deavin).  In the determination, promulgated on 16 July 2003, he dismissed the appellant’s appeal on both asylum and human rights grounds.   The appeal was from a decision of the respondent, made on 15 January 2003, to refuse to grant asylum.    The appeal was under Section 69(3) of the Immigration Asylum Act 1999 because the appellant had leave to remain in the United Kingdom until 8 March 2003.    That leave has now expired and we do not understand it to have been extended.

2.	The appellant claims, and the Adjudicator accepted, that he is a deserter from the Zimbabwean army.     He had been in the army for 8 years and was stationed in the Democratic Republic of Congo.   He deserted whilst on home leave and did not return.   He went away to Bulawayo where he stayed for 3 months prior to going to Botswana.    When he returned from Botswana to Bulawayo, he found his bank account had been frozen.  He did not go back to his home in Harare because he was told that the military police were looking for him.   They had visited his home a week after he failed to return and before he left for Bulawayo.  

3.	There is also evidence, accepted by the Adjudicator, that when the military police visited his home they found MDC material comprising of T-shirts cards, leaflets and flags.

4.	The appellant gave unsupported evidence, which was not expressly accepted by the Adjudicator, that other soldiers ran away during that period.  He said those that had been caught had been court-martialled, some having been charged with desertion and treason.    Also, he said, his army number was such as to identify him as an MDC sympathiser and as such he was given more dangerous assignments.   He seems to have been a Sergeant at the time he deserted.

5.	The Adjudicator found that there is a real risk that he would be prosecuted for desertion on return, and that he would be dealt with at a court-martial.    In paragraph 54 of the determination, the Adjudicator said that there was evidence before him to suggest that such trials are fair, but no evidence to suggest he would be charged with treason.   The other finding made by the Adjudicator is that the appellant was only a very low level member of MDC having joined in August 2001.  Joining in 2001 would not explain how he could have an army number identifying him as an MDC member, unless his number had been changed since he signed up.  He said that there is clear evidence that even low level members suffer harassment but did not find that there was sufficient evidence to say that it was reasonably likely that he would be persecuted for his political views.  

6.	The grounds attack the Adjudicator’s findings by saying that he did not take into consideration the objective evidence,  in particular evidence that the government threatened and intimidated the judiciary.  They also criticise the Adjudicator’s finding that the appellant, as a known opposition supporter would receive a fair trial against and argue that is against the weight of the evidence.   

7.	Mr Elks’s primary position was that the appellant was not reasonably likely to have problems on return.   He relied on the fact that the appellant left using his own recently issued passport and had experienced no difficulty in doing so.   He produced a copy of the passport, which is in the appellant’s own name, and clearly shows the exit stamp.   He said the Adjudicator found that there was a risk the appellant would be prosecuted for desertion on return, but did not quantify that risk.  He went on to say that there was no evidence to suggest that his trial would be unfair.

8.	We were not persuaded that the fact the appellant was to leave as he did means he will be safe on return.  We start from the premise that the appellant is a deserter and that the army know that he is an MDC supporter.     There is a reasonable likelihood that, either on return or subsequently, it would be ascertained that the appellant was such a deserter.   

9.	Miss Muquit took us through the objective evidence about deserters.   There is not a great deal.   When we considered this we did so differently from the Adjudicator’s approach.    He looked at the questions of trial for desertion, and the appellant’s membership of the MDC separately.   We were concerned about the two in combination because, if the appellant is considered for prosecution, or is tried for desertion, there is evidence (accepted by the Adjudicator) that the army knew abut his MDC support.   Although we have expressed doubts about the evidence, and the Adjudicator did not make an express finding, his army number is said to identify him as such a supporter.

10.	The first piece of objective evidence she addressed was an extract from The Herald that had been found on the allAfrica.com website and is dated 28 April 2003.   Miss Muquit could not explain why this had not been subjected to the procedure under rule 21 of the Immigration and Asylum Appeal (Procedure) Rules 2003 and apologised.   She said she had put it into her bundle and that had been served in good time, albeit that the respondent’s copy had not reached Mr Elks’s file.  He initially objected to it being admitted without Rule 21 having been complied but then agreed to it going in, on condition that we put into the determination the fact that it should have been dealt with properly.  The article concerns 26 deserters from the Zimbabwean army who, it is said, were arrested for “suspected links with an underground military wing of the MDC”.     The Minister of Defence, referring to this is quoted as having said,

“These had made on oath to protect the country and after carrying out substantial investigations they will be brought before the High Court for the crimes they committed”.

	He went on to say:

“In an effort to malign the image of the country and destabilise Zimbabwe, foreign enemies and their local puppets were now resorting to more subtle facts by employing spying agents in the army”.

	A little later on he said:

“Let me make it clear that those criminals and enemies of the state like the deserters who have a high propensity for violence will certainly face the wrath of the law”.

	Miss Muquit argued that it did not follow that the so called suspected links with underground military wing of the MDC were genuine and argued that the article displayed hostility towards deserters.

11.	An article that was before the Adjudicator, is an item from the Zimbabwean Independent, found on their web site on 20 May 2003.     Miss Muquit said that the Adjudicator made no mention of this in his determination.  The article says this:

“Two Zimbabwe National Army (ZNA) soldiers, who fled the country last year after they were tortured for allegedly supporting the opposition Movement for Democratic Change have been granted asylum in Australia”.

	We note that their journey to Australia was facilitated by UNCHR. The two, corporals, said that they had been tortured and harassed for refusing to campaign for President Mugabe during the previous year’s presidential elections.     Like the appellant, they had been serving in the DRC.   They said this:

“We refused to campaign for ZANU-PF because it was against the ethics of our profession and also on account of the fact that were not political activists.  We had done our job in the DRC and we did not want to be involved in politics”.

Ndou and Ntini [the deserters] said that there was a massive crackdown in the army after the election “Uniformed political activists” they said, targeted those referred to as “born frees” - those born since 1980.

“We were branded MDC sell-outs and all junior NCOs who were ear marked for promotion were later replaced by old unqualified war veterans who are actually ZANU-PF political Commissions” Ndou and Ntini said

“The claims against us were all false, and pure and simple nonsense.    It was a matter of political intolerance and repression, which is at the heart of Zimbabwean political crisis.   We were nearly “liquidated” just because we refused to be part of the army’s project to prop up a collapsing dictatorship”.  

12.	There is another news item from the allAfrica.com web site, an article from the Daily News on 29 August 2003.    This is an account of a former soldier who was charged, court-martialled and tried for desertion.    It says that he was:-

“severely tortured by army intelligence officers and coerced to appeal before a media conference ‘admitting’ to having conspired with opposition MDC activists to assault results in various  high density suburbs of Harare…” 

	Miss Muquit also referred us to a USSD report:-

“Detainees generally were not allowed prompt or regular access to their lawyers.  Authorities often informed lawyers who attempted to visit their clients that the detainees were “not available”.     Family members generally were denied access unless accompanied by an attorney.    Detainees, especially those from rural areas without representation, routinely were held incommunicado.   Family members and attorneys often were not able to verify that a person had been detained until the detainee had appeared in court.”

13.	A little later on it said:

“Prolonged pre-trial detention remained a problem.    Detainees spent an average of 6 months incarcerated before their trials because of a critical shortage of magistrates and court interpreters”.

	She then referred us to various other parts of the US State Department report.  Later in that section it clearly makes the point that the authorities in Zimbabwe have an extremely cavalier approach towards the rule of law.   There is reference to the arrest and detention of the President and the Executive Secretary of the Law Society of Zimbabwe and to a retired judge who was detained incommunicado.   Prison conditions are dealt with in the US State Department Report which describes them as harsh and life threatening.  

14.	Mr Elks secondary position was that the appellant would receive a fair trial.    He argued that the Adjudicator’s finding that trial by Court-Martial would be fair is, contrary to Miss Muquit submissions, based on evidence.  He took us to the CIPU report at paragraph 6.140 where the following appears:-

“Military courts deal with court-martial proceedings.  Defendants in military courts have the right of appeal to the Supreme Court.  Trials in Military and courts generally meet internationally accepted standards for fair trials.”

15.	In the section under “denial of fair public trial” the 2002 US State Department report says this:-

“Military Courts dealt with disciplinary or court-martial proceedings.   Police courts, which can sentence a police officer for confinement in a camp or demotion, and handle disciplinary and misconduct cases.   Trials in both these latter courts generally met internationally accepted standards of fair trials.   Defendants in these courts have the right to appeal to the Supreme Court”.

16.	He argued that it is therefore apparent that the Adjudicator’s finding that the court-martial would be fair had a basis in the evidence.   

17.	We decided that it would be appropriate to look at the recently published US State Department report covering 2003.   It said, in the equivalent section, the following:-

“Military courts dealt with court-martials disciplinary proceedings for military personnel.  Police courts, which can sentence a police officer to confinement in a camp or demotion, handle disciplinary and misconduct cases.   Defendants in these courts have the right to appeal to the Supreme Court”.

18.	The difference between the current and previous report is that the sentence

“Trials in both these latter courts generally met internationally accepted standards of fair trials”

has disappeared.  Mr Elks asked us not to put too much on that change.  We were struck by the omission of that sentence and regard it as significant.    Unfortunately, although the next edition of the CIPU report was due out in the following few days, we were not able to find out whether it reflects the change in the US State Department position.   

19.	Having considered the possible risks to the appellant, as a deserter, linked with the fact that he is an MDC supporter, as illustrated by the objective evidence we do not find that the Adjudicator’s determination is sustainable.   We accept that the news items concerning deserters that Miss Muquit  produced dealt with individual cases.  However, the news reports generally, when read with the objective material indicate a very clear disregard for the rule of law, extremely poor prison conditions and a serious risk of mistreatment during extended periods of detention awaiting trial.  It is interesting to note, although it is only of persuasive effect, that the two deserters who fled to Australia were granted refugee status there.   There is very little in the objective material about courts-martial, as opposed to court, proceedings.  There is no real basis for supposing that courts-martial are materially different from the civil courts when it comes to government interference and lack of independence of the decision maker.   There is clear evidence in the objective material that the Zimbabwean judiciary, especially in the lower courts, is not independent and is frequently the subject of government attention to discourage it from making decisions which the government does not like.    We were particularly struck by the US State Department having withdrawn their assertion that court-martial proceedings are generally fair to international standards.   We are not prepared to accept there is no significance in that change, we regard it as very significant.   

20.	In the circumstances, the Adjudicator having found that there is a risk that the appellant will be charged with desertion, and having formed our own view that that is a real risk, we are satisfied that the treatment which would then be meted out to this deserting MDC supporting sergeant would be such as to amount to persecution and a real risk of a breach of his rights under Article 3.  

21.	We are conscious of the fact that this decision is based in part on evidence which was not before the Adjudicator.   This situation has been covered by the Court of Appeal recently in Indrakumar [2003] EWCA Civ 1677.  Even without the new evidence, there was a clear error of law by the Adjudicator because he failed to considered the combined effect of the appellant being both a deserter and an MDC supporter.  That is a material omission and something which we needed to deal with.  The evidence which was not before the Adjudicator is objective evidence which we are able to assess.  The Adjudicator found the appellant to be credible and we therefore have a clear factual basis for this determination.

22.	In all those circumstances we consider that this appeal must be allowed for the reasons we have set out above.

									C P Mather
									Vice President