A case for the courts if ever there was one

PUBLISHED : Wednesday, 10 June, 2009, 12:00am
UPDATED : Wednesday, 10 June, 2009, 12:00am

The government's decision not to prosecute two bodyguards of the daughter of Zimbabwean leader Robert Mugabe for assault raises some serious questions. The victims were two foreign journalists who were allegedly assaulted outside Bona Mugabe's home in Tai Po. On the face of it, there was enough evidence to support a court case. Such a step would appear to be in the public interest. Moreover, the reasons given by the Department of Justice for not proceeding are unconvincing. Given the circumstances, the decision raises concerns about the freedom of the press to investigate stories. It also risks undermining public confidence in Hong Kong as a place where everyone is equal before the law.

The decision came after Mr Mugabe's wife, Grace, allegedly beat another foreign photographer in Tsim Sha Tsui while she was shopping. The Department of Justice took the view that Mrs Mugabe had diplomatic immunity. In the absence of any court hearing in either case, the full details are unclear. The two decisions may be justified, but the public is left wondering whether the family of one of Africa's most notorious rulers and his associates are beyond the law in Hong Kong.

The Department of Justice said the bodyguards - who are alleged to have grabbed one journalist by the neck and gripped and bruised the other - were genuinely concerned for Bona Mugabe's safety and believed they were acting properly. Surely, this is precisely the sort of issue which is best settled by a court - after witnesses and defendants have given evidence and been subjected to cross-examination.

The department is right to disclose the reasons for its decision not to prosecute. A policy of transparency is welcome. But the reasons it has given resemble the sorts of statements one would expect the defence to put forward. The lawyer for the journalists claims Bona Mugabe was nowhere to be seen at the time of the incident and that they both identified themselves as members of the media. If so, the guards could have alerted police, rather than taking physical action, if they perceived a threat. Such matters are best determined by a judge or jury.

The prosecution is not obliged to proceed in every case in which there is evidence. There are a number of factors to be weighed up. No doubt, the Director of Public Prosecutions would argue that advice was sought on the bodyguards' case from a non-government counsel and the published prosecution policy adhered to. But that will not be sufficient to dispel the doubts.

This is not the first time a decision not to prosecute has been made in a politically sensitive case. Confidence in the rule of law would have been better served if the guilt or innocence of the bodyguards had been determined by a court.