The
background facts are the following.
The
appellant is charged with contravening section 22(2) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] i.e. “subverting a constitutional
government.” It is briefly alleged that on 24 February 2001, he urged and
suggested to the Prime Minister, Mr Morgan Tsvangirai, to take over or attempt
to take over the Government by unconstitutional means by sending an email on
the Prime Minister's facebook social network. It is the contents of this email
message that forms the charge in this case. The message reads: “I am
overwhelmed don't know what to say PM, what happened in Egypt is sending shock
waves to all dictators around the world. Worth emulating hey.” From the facts
alleged in the State Outline, the State case is based purely on this message.
The message has been described by the State as “a security threat message to
Prime Minister…,.”
The
magistrate refused the appellant bail on the following reasons:-
“Having
listened to submissions of both the State and the defence counsil [sic] this
court is of the view that it would not be in the interest of justice to grant
the accused bail at this stage. It is this court's view that although the
accused is presumed to be innocent until proven guilty, the seriousness of the
charge which accused is facing, the safety of the public and the security of
the State cannot be overshadowed by the liberty of an individual. The court
also has no reason to believe that the assumption that accused may continue
sending messages to people urging them to revolt against the Government is a
remote possibility. Neither is there any mechanism which this court may put in
place to bar the accused from doing so. In the circumstances bail is
accordingly refused.”
This
appeal is directed at this finding by the Magistrate's Court.
It
is trite that in the absence of misdirection or irregularity the court a quo's
discretion in denying an appellant bail cannot be assailed.
In
the Magistrate's Court, the State called viva voce testimony of the
Investigating Officer, Detective Sergeant Nyathi, in support of its case. His
reasons for opposing bail were that the appellant may abscond as he is
unemployed and that he may continue sending similar messages. In his reasons,
the trial magistrate did rule that there is a risk of abscondment. He gave the
following reasons i.e. seriousness of the offence, threat to security and risk
of commission of similar offences.
It
is trite that the seriousness of the offence is not itself a reason to deny
accused bail. The seriousness of the offence has to be viewed in conjunction
with other factors. The court a quo misdirected itself by making the
seriousness of the offence the overriding factor to refuse the appellant bail -
Aitken & Anor v Attorney General 1992 (1) ZLR 255 (S) and S v Hussey 1991
(2) ZLR 19 (S). In the latter case, it was stated that:
“…,
to disregard this very well founded principle and to incarcerate an individual
purely because he faces a serious offence would be in disregard of this very
valid and important principle and respect for the law and social condemnation
of those who break is.”
In
Attorney General v Kanada HH200-90 it was rightly stated:
“…,
the seriousness of the offence charged is not per se a reason to refuse bail.
The fundamental principle governing the court's approach to bail is to uphold
the interests of justice. This requires the court, as expeditiously as possible,
to fulfill its function of safeguarding the liberty of the accused person as
enshrined in section 13 of the Constitution, while at the same time protecting
the administration of justice and the reasonable requirements of the State.”
See
also S v Biti 2002 (1) ZLR 115 (H).
Bail
is not punitive by nature. In light of the foregoing misdirection, I am at
liberty as far as bail is concerned.
On
the question of the likelihood of commission of further similar crimes, this is
no more than a mere assumption unsupported by any evidence. The State should
support its assertions with cogent reasons - S v Hussey 1991 (2) ZLR 19 (S).
In
this case, the offending email was sent to the Prime Minister on 24 February
2011. The appellant was arrested on 28 February 2011. No further email messages
were sent to anyone in those four days. The appellant had sufficient time to
make up follow-up messages. He did not do so. The court a quo fell into error
by failing to follow these guiding principles from precedents.
Looking
at the facts, the granting of bail, accompanied by stringent conditions, will
meet the justices of the case. It is accepted the offence is serious. There is
no evidence that this fact alone would induce the unemployed appellant to
abscond. Other conditions would serve as deterrence from sending similar
messages. The appellant now knows the seriousness of his conduct from his
incarceration. He now knows the futility
of sending such messages under anomity from the detection of the present
offence. He was arrested notwithstanding the fact that he sent the message
concealing his identity.
Accordingly,
the appeal succeeds. I set aside the order of the court a quo and grant the
appellant bail as follows:
1.
That the appellant deposits the sum of US$200= with the Deputy Registrar of
High Court, Bulawayo.
2.
That the appellant resides at 948/2 Old Magwegwe, Bulawayo until the
finalization of the matter.
3.
That the appellant shall not interfere with State witnesses or tamper with State
evidence.
4.
That the appellant reports three times a week, on Mondays, Wednesdays and Fridays
between 6.00 am and 6.00 pm at Magwegwe Police Station.
5. That
the appellant shall not leave 40 kilometres radius of Bulawayo Main Post Office
without a written authority by a Bulawayo magistrate.
