The
11 applicants were arrested on 14 April 2011 on allegations of politically
motivated public violence in contravention of s 36 (1) (b) of the Criminal Law
(Codification and Reform) Act [Cap 9:23].
The accused are alleged to have severely assaulted the complainants with the
result that of they were hospitalized. Since then they have been languishing in
prison pending trial.
They
were twice denied bail by the same magistrate victims on 20 May 2011 and 16 June
2011. The hearing magistrate initially refused them bail on the basis that
politically motivated violence was a serious offence. There was need to curb
that type of conduct particularly that the country was now herding towards
elections. It was also feared that the accused might interfere with witnesses.
The
magistrate's reasoning in this respect could hardly be faulted at that time. When
the accused persons later applied for bail on changed circumstances they
however, endeavoured to convince the magistrate that they had adjusted their
position in order to address the court's fears. They also pointed to a number
of changed circumstances in their favour.
As
at 20 May 2011 investigations had been completed. The trial date had been set
for 24 May 2011. There was therefore little or no prospect of them interfering
with investigations. The trial started on 16 June 2011. To date one witness has
given evidence. To avert any prospect of interfering with the remaining state
witnesses the applicants proffered alternative residential addresses.
What
seems to have escaped the magistrate's notice is that this is an in house
fighting among members of the same party belonging to different factions. This
type of political violence does not appear to be widespread and can
conveniently be addressed through the party leadership while the law takes its
course. The fear of renewed violence and victimization of the accused was in my
view properly addressed when the applicants proffered alternative residential
addresses. The magistrate therefore misdirected himself by ruling that there
were no valid changed circumstances warranting the granting of bail.
I
do not see how the release of the applicants on bail can constitute a threat to
public peace in the area if they have provided alternative residential
addresses away from the complainants and their associates and sympathizers.
The
applicants are simple rustic dwellers who are well known in their locality such
that the risk of abscondment is almost zero. They have offered to pay
substantial amounts of bail which will provide an incentive for them to attend
their trial.
The
magistrate's order refusing the applicants bail is accordingly quashed and
replaced by the following order:
That the
applicants be and are hereby granted bail on the following terms:
1.
That each applicant shall deposit US$100.00 with the
clerk of court Mutawatawa Magistrates court.
2.
That each applicant resides at his given alternative
address until this matter is finalized
3.
That each applicant reports at Mutawatawa police
station once every week on Fridays between the hours of 6am and 6pm until the
completion of his trial.
4.
That each applicant shall not interfere with witnesses.
Warara & Associates, applicant's legal practitioners
The Attorney
General's office, respondent's legal practitioners
