The
appellant appeared for initial remand on 26 July 2019, before the
Acting Chief Magistrate. Counsel for the State then applied for the
appellant to be remanded in custody for 21 days. He produced a
certificate issued by the Prosecutor General in terms of section
32(3b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
In
response, ...
The
appellant appeared for initial remand on 26 July 2019, before the
Acting Chief Magistrate. Counsel for the State then applied for the
appellant to be remanded in custody for 21 days. He produced a
certificate issued by the Prosecutor General in terms of section
32(3b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
In
response, the appellant raised an objection to the production of the
certificate. It was contended, on her behalf, that section 32(3b) of
the Criminal Procedure and Evidence Act [Chapter 9:07] had been
rendered dysfunctional because of the provisions of section 50(1) of
the Constitution, 2013 which made bail a Constitutional right for
every accused person which right could not be taken away on the basis
of a mere opinion from the Prosecutor General….,.
The
Acting Chief Magistrate held that he was satisfied that there was a
reasonable suspicion that the appellant had committed the offences
with which she was being charged. He concluded that all the
requirements necessary for the production of the certificate, in
terms of section 32 of the Criminal Procedure and Evidence Act had
been met and he accordingly accepted its production. He then invoked
section 32(3c) of the Criminal Procedure and Evidence Act and held
that the effect of the production of the certificate was to oust the
court's jurisdiction in determining issues related to
an accused person's admission to bail during the lifespan of the
certificate. In the result, he refused to entertain the appellant's
bail application. He thereafter ordered that the appellant be
detained for 21 days….,.
The
High Court…, determined the issue whether or not section 32(3b) and
(3c) of the Criminal Procedure and Evidence Act [Chapter 9:07] are
not in conformity with the Constitution and it was held that they
were not. The High Court held that the Magistrates Court erred when
it refused to determine the bail application, and, as such, its
consequent order for the 21 day detention of the appellant should be
set aside….,.
The
next issue is the contention by the State that the High Court, like
the Magistrates Court, did not have jurisdiction once the certificate
issued in terms of section 32(3b) of the Criminal Procedure and
Evidence Act [Chapter 9:07] was accepted by the magistrate under the
section in question.
The
proceedings before the Magistrates Court arose when the State sought
to have the appellant placed on remand consequent to the charges of
criminal abuse of office levelled against her in terms of section
174(1)(a) of the Criminal
Law (Codification and Reform) Act [Chapter 9:23] (the Criminal
Code).
After presenting the charges, the respondent produced a certificate
from the Prosecutor General in terms of section 32(3b) of the
Criminal Procedure and Evidence Act [Chapter 9:07]. Thereafter, the
respondent applied that the appellant be remanded in custody for 21
days. The appellant opposed the production of the certificate to the
court on the basis that section 32(3b) of the Criminal Procedure and
Evidence Act was ultra vires section 50(1) of the Constitution. The
magistrate rejected the argument by the appellant and went on to say:
“The
court has no hesitation to find all the requirements necessary for
the production of the Prosecutor General's certificate, produced in
terms of section 32(3b), have been met. The effect of the certificate
is to oust this and every other court's jurisdiction in determining
issues relating to the accused person's admission to bail during
its life span. The court holds that the certificate is valid and
effective. I therefore order the detention of the accused person as
prayed for in the Prosecutor General's certificate.”
Based
on this determination, the appellant launched an appeal to the High
Court. It is the correctness of the appeal that must be explored.
The
Acting Chief Magistrate concluded that the production of the
certificate has the effect of ousting the jurisdiction of the courts
in determining issues relating to the accused person's admission to
bail during its pendency. On the basis of that reasoning the High
Court's jurisdiction to determine the appellant's matter was
ousted. Consequently, everything that the High Court did would be
contrary to the law and null. The provisions upon which the Acting
Chief Magistrate relied and on, which the State premised its
preliminary challenge to the jurisdiction of the court a quo, read as
follows:
“(3b)
Where the person arrested without warrant is charged with any offence
referred to in the Ninth Schedule and there is produced to the judge
or magistrate before whom the person is brought in terms of this
section —
(a)
A certificate issued by or on behalf of the Prosecutor-General
stating that, in the Prosecutor General's opinion;
(i)
The offence in question involves significant prejudice or significant
potential prejudice to the economy or other national interest of
Zimbabwe; and
(ii)
The further detention of the person arrested, for a period of up to
twenty-one days, is necessary for any one or more of the following
reasons -
A.
The complexity of the case; or
B.
The difficulty of obtaining evidence relating to the offence in
question; or
C.
The likelihood that the person arrested will conceal or destroy the
evidence relating to the offence in question or interfere with the
investigation of the offence or both; and
(b)
The following, where the arrest is made in the circumstances referred
to in paragraph (b) of subsection (1) of section twenty-five —
(i)
Proof that the arresting officer was an officer of or above the rank
of assistant inspector at the time of the arrest, or that the
arresting officer made the arrest with the prior leave of such an
officer; and
(ii)
Where the alleged offence was disclosed through an anonymous
complaint, a copy of the complaint as recorded in accordance with
subparagraph (ii) of the proviso to paragraph (b) of subsection (1)
of section twenty-five; the judge or the magistrate shall, if
satisfied that there is a reasonable suspicion that the person
committed the offence, order that person's detention or issue a
warrant for his or her further detention for a period of twenty-one
days or the lesser period specified in the certificate.
(3c)
A person referred to in subsection (3a) or (3b) shall, unless the
charge or charges against him or her are earlier withdrawn, remain in
detention for twenty-one days or the lesser period specified in a
certificate mentioned in subsection (3b), as the case may be, from
the date when an order or warrant for the person's further
detention was issued in terms of the relevant subsection, and no
court shall admit such person to bail during that period. Provided
that the arresting officer or other officer in authority over him or
her shall, at intervals of not more than forty-eight hours beginning
on the date when the order or warrant for the person's further
detention is issued, make a report to the Prosecutor-General on the
progress of the investigations into the charge or charges against the
person in detention, and if the Prosecutor-General is satisfied on
the basis of any such report that the person's detention is no
longer justified, the Prosecutor-General may order the immediate and
unconditional release of the detained person.”
If
regard is had to the above provisions; once the magistrate had
accepted the certificate upon its production, and, in accordance with
the provisions of section (3c) of the Criminal Procedure and Evidence
Act, the only way the High Court would be clothed with jurisdiction
to hear this matter would have been if the appeal was made properly,
that is to say, if the appellant had appealed against the decision of
the court to validate the Prosecutor-General's certificate and give
it full effect.
Therefore,
the respondent's second preliminary point also had merit and ought
to have been upheld.
The
proper course to take for the appellant was to appeal against the
decision to validate the Prosecutor General's certificate and had a
decision been made in its favour, it ought to have then prayed for
the remittal of the matter to the court a quo for a determination on
the merits which is the issue of whether or not the appellant should
be granted bail. This would have been the correct procedure to adopt.
The appellant chose not to follow this route and embarked upon an
appeal not supported by law.
As
matters stand, the High Court, in my view, went outside the purview
of its jurisdictional mandate and determined a bail application that
was never before the court a quo, dealing with a supposed appeal that
lacked jurisdictional foundation. This renders the basic foundation
upon which the appeal was noted shaky. It also affects the matter
before me. If there was nothing before the court a quo, it follows
that there is no appeal to be dealt on the merits before me.
The
preliminary points had merit, and before the court could entertain
the appellant, the decision of the magistrate had to be dealt with
properly on the substance.
That
being so, it then becomes evident that the appellant's appeal
suffered an incurable defect and should not have been entertained by
the court a quo. The appeal was a nullity and it is a trite position
of our law that nothing can stand on a nullity. See McFoy v United
Africa Co. Ltd 1961 93 ALL ER 1169 (CPC).
THE
DECLARATION BY THE COURT A QUO THAT SECTION 32(3B) WAS ULTRA VIRES
SECTION 50 OF THE CONSTITUTION
For
purposes of completeness, I must comment on the decision of the court
a quo to declare section 32(3b) and (3c) of the Criminal Procedure
and Evidence Act [Chapter 9:07] unconstitutional.
This
was an issue that was not brought before the court a quo for
determination. An attempt to seek a declaration as to the
constitutionality of the provision through an application to amend a
draft order which sought bail was abandoned. In the absence of a
challenge as to its constitutional validity it was not open to the
court a quo to declare a provision in a statute unconstitutional.
As
far as the law is concerned these provisions are not ultra vires the
Constitution especially if regard is had to the provisions of section
50(1) of the Constitution. It states as follows:
“50
Rights of arrested and detained persons
(1)
Any person who is arrested —
(a)
Must be informed, at the time of arrest, of the reason for the
arrest;
(b)
Must be permitted, without delay —
(i)
At the expense of the State, to contact their spouse or partner, or a
relative or legal practitioner, or anyone else of their choice; and
(ii)
At their own expense, to consult, in private, with a legal
practitioner and a medical practitioner of their choice; and must be
informed of this right promptly;
(c)
Must be treated humanely and with respect for their inherent dignity;
(d)
Must be released unconditionally or on reasonable conditions, pending
a charge or trial, unless there are compelling reasons justifying
their continued detention; and
(e)
Must be permitted to challenge the lawfulness of the arrest in person
before a court and must be released promptly if the arrest is
unlawful.”…,.
It
must be noted that the right to liberty is not an absolute right,
therefore, where there are “compelling” circumstances the Courts
are at liberty to detain the accused person.
A
closer look at section 32(3a) and (3b) of the Criminal Procedure and
Evidence Act [Chapter 9:07] would show that the Prosecutor General
does not issue such a certificate in every situation but where the
situation is one that satisfies the requirements under section
32(3b). This is what would constitute “compelling” circumstances
as stated under section 50(1)(d) of the Constitution.
Therefore,
the reasoning behind the finding of the unconstitutionality of these
provisions, is, with respect, irregular and without legal foundation.
In
point of fact a reading of section 117 of the Criminal Procedure and
Evidence Act, which provides for the entitlement to bail, puts paid
to the assumption by the court a quo that the provisions in the
Criminal Procedure and Evidence Act, regarding bail, are
unconstitutional. Section 117 provides in relevant part:
“117
Entitlement to bail
(1)
Subject to this section and section 32, a person who is in custody in
respect of an offence shall be entitled to be released on bail at any
time after he or she has appeared in court on a charge and before
sentence is imposed, unless the court finds that it is in the
interests of justice that he or she should be detained in custody.
(2)
The refusal to grant bail and the detention of an accused in custody
shall be in the interests of justice where one or more of the
following grounds are established —
(a)
Where there is a likelihood that the accused, if he or she were
released on bail, will —
(i)
Endanger the safety of the public or any particular person or will
commit an offence referred to in the First Schedule; or
(ii)
Not stand his or her trial or appear to receive sentence; or
(iii)
Attempt to influence or intimidate witnesses or to conceal or destroy
evidence; or
(iv)
Undermine or jeopardise the objectives or proper functioning of the
criminal justice system, including the bail system; or
(b)
Where, in exceptional circumstances, there is the likelihood that the
release of the accused will disturb the public order or undermine
public peace or security.
(3)
In considering whether the ground referred to in —
(a)
Subsection (2)(a)(i) has been established, the court shall, where
applicable, take into account the following factors, namely —
(i)
The degree of violence towards others implicit in the charge against
the accused;
(ii)
Any threat of violence which the accused may have made to any person;
(iii)
The resentment the accused is alleged to harbour against any person;
(iv)
Any disposition of the accused to commit offences referred to in the
First Schedule, as evident from his or her past conduct;
(v)
Any evidence that the accused previously committed an offence
referred to in the First Schedule while released on bail;
(vi)
Any other factor which, in the opinion of the court, should be taken
into account;
(b)
Subsection (2)(a)(ii) has been established, the court shall take into
account —
(i)
The ties of the accused to the place of trial;
(ii)
The existence and location of assets held by the accused;
(iii)
The accused's means of travel and his or her possession of or
access to travel documents;
(iv)
The nature and gravity of the offence or the nature and gravity of
the likely penalty therefor;
(v)
The strength of the case for the prosecution and the corresponding
incentive of the accused to flee;
(vi)
The efficacy of the amount or nature of the bail and enforceability
of any bail conditions;
(vii)
Any other factor which, in the opinion of the court, should be taken
into account;
(c)
Subsection (2)(a)(iii) has been established, the court shall take
into account —
(i)
Whether the accused is familiar with any witness or the evidence;
(ii)
Whether any witness has made a statement;
(iii)
Whether the investigation is completed;
(iv)
The accused's relationship with any witness and the extent to which
the witness may be influenced by the accused;
(v)
The efficacy of the amount or nature of the bail and enforceability
of any bail conditions;
(vi)
The ease with which any evidence can be concealed or destroyed;
(vii)
Any other factor which, in the opinion of the court, should be taken
into account;
(d)
Subsection (2)(a)(iv)
has been established, the court shall take into account —
(i)
Whether the accused supplied false information at arrest or during
bail proceedings;
(ii)
Whether the accused is in custody on another charge or is released on
licence in terms of the Prisons Act [Chapter 7:11];
(iii)
Any previous failure by the accused to comply with bail conditions;
(iv)
Any other factor which, in the opinion of the court, should be taken
into account;
(e)
Subsection (2)(b) has been established, the court shall, where
applicable, take into account the following factors, namely —
(i)
Whether the nature of the offence and the circumstances under which
the offence was committed is likely to induce a sense of shock or
outrage in the community where the offence was committed;
(ii)
Whether the shock or outrage of the community where the offence was
committed might lead to public disorder if the accused is released;
(iii)
Whether the safety of the accused might be jeopardised by his or her
release;
(iv)
Whether the sense of peace and security among members of the public
will be undermined or jeopardised by the release of the accused;
(v)
Whether the release of the accused will undermine or jeopardise the
public confidence in the criminal justice system;
(vi)
Any other factor which, in the opinion of the court, should be taken
into account.
(4)
In considering any question in subsection (2) the court shall decide
the matter by weighing the interests of justice against the right of
the accused to his or her personal freedom, and, in particular, the
prejudice he or she is likely to suffer if he or she were to be
detained in custody, taking into account, where applicable, the
following factors, namely —
(a)
The period for which the accused has already been in custody since
his or her arrest;
(b)
The probable period of detention until the disposal or conclusion of
the trial if the accused is not released on bail;
(c)
The reason for any delay in the disposal or conclusion of the trial
and any fault on the part of the accused with regard to such delay;
(d)
Any impediment in the preparation of the accused's defence or any
delay in obtaining legal representation which may be brought about by
the detention of the accused;
(e)
The state of health of the accused;
(f)
Any other factor which, in the opinion of the court, should be taken
into account.
(5)
Notwithstanding the fact that the prosecution does not oppose the
granting of bail, the court has the duty to weigh up the personal
interests of the accused against the interests of justice as
contemplated in subsection (4).
(6)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to in—
(a)
Part I of the Third Schedule, the judge or (subject to proviso (iii)
to section 116) the magistrate hearing the matter shall order that
the accused be detained in custody until he or she is dealt with in
accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies the
judge or magistrate that exceptional circumstances exist which, in
the interests of justice, permit his or her release;
(b)
Part II of the Third Schedule, the judge or (subject to proviso (iii)
to section 116) the magistrate hearing the matter shall order that
the accused be detained in custody until he or she is dealt with in
accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies the
judge or magistrate that the interests of justice permit his or her
release.
(7)
Where a person has applied for bail in respect of an offence referred
to in the Third Schedule —
(a)
The Prosecutor-General; or
(b)
The Minister responsible for the administration of the Public Order
and Security Act [Chapter 11:17], in respect of offence referred to
in paragraph 6 of Part I of the Third Schedule, may issue a
certificate stating that it is intended to charge the person with the
offence.
(8)
If the Minister responsible for the administration of the Extradition
Act [Chapter 9:08] certifies, in writing, that a person who has
applied for bail has been extradited to Zimbabwe from a foreign
country and that the Minister has given an undertaking to the
Government or other responsible authority of that country —
(a)
That the accused person will not be admitted to bail while he or she
is in Zimbabwe, the judge or magistrate hearing the matter shall not
admit the accused person to bail;
(b)
That the accused person will not be admitted to bail while he or she
is in Zimbabwe except on certain conditions which the Minister shall
specify in his or her certificate, the judge or magistrate hearing
the matter shall not admit the accused person to bail except on those
conditions: Provided that the judge or magistrate may fix further
conditions not inconsistent with the conditions specified by the
Minister on the grant of bail to the accused person.
(9)
A document purporting to be a certificate issued by a Minister or the
Prosecutor-General in terms of subsection (7) or (8) shall be
admissible in any proceedings on its production by any person as
prima facie evidence of its contents.”
As
the question of the invalidity of section 32(3b) of the Criminal
Procedure and Evidence Act is not an issue for determination in this
appeal, I do not intend to dwell on that aspect. I will confine my
remarks to the obvious provision of an accused person's entitlement
to bail in section 117(1) of the Criminal Procedure and Evidence Act
unless there are compelling reasons for his detention in custody.
It
is worth noting that the section has made provision for almost every
factor that a court should consider in the accused person's
favour in order to ensure that detention in custody may be ordered
only where compelling reasons for such detention have been
established by the State. That this provision accords with section
50(1)(d) of the Constitution is not in dispute.
