The appellants are facing a charge of contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; it being alleged that, on 29 May 2011, they killed Petros Mutedza, who was an Inspector in the Zimbabwe Republic Police….,.
The fact that the life of a police officer was lost in the course of execution of his duty of enforcing the law is an important factor to be considered in striking the balance between the interest of the individual in personal liberty pending trial and the interests of society in having those accused of crime on reasonable suspicion tried and punished if convicted.
The interests of fairness and justice require that the matter be approached dispassionately in accordance with the law.
Inspector Mutedza was called to disperse an unlawful gathering of members of the youth league of the Movement for Democratic Change (MDC-T) party at Glen View 3 Shopping Centre. The same group of about 50 youths had earlier on been dispersed by other police officers from Glen View 4 Shopping Centre.
The deceased and his team of police officers, in uniform, arrived at Glen View 3 Sshopping Centre where the youths were participating in an MDC(T) T-shirt visibility day campaign strategy. They all wore MDC(T) red and white T-shirts and chanted slogans and sang party songs. The youths were also braaing meat and drinking beer at Munyarari Night Club. The deceased, and five other police officers, entered the night club to tell the leaders that the gathering had to disperse because it had not been authorized by the police. It is alleged that the group of youths then shouted "matatya ngaurawe", which, when literally translated, means: "kill the frogs." The police were then attacked with various missiles including stones, bricks and bar stools. They were forced to run out of the night club. The deceased mistook a Nissan Hardbody motor vehicle, allegedly being driven by the fourth appellant, for the police vehicle. He ran to it for cover. When the deceased tried to open the door of the car to seek refuge, the fourth appellant is alleged to have driven away from the deceased for about four (4) metres. That is when the deceased was struck on the head with a half brick. He fell to the ground. The mob of youths set upon him kicking and trampling his body until he lost consciousness and died. It is alleged that some of the youths jumped into the Nissan Hardbody and the fourth appellant drove them away from the scene at high speed. Cynthia Manjoro is also alleged to have driven away her vehicle from the scene with some of the youths who had attacked the deceased. It is alleged that MDC (T) youths who remained behind removed their party T-shirts to avoid detection and left the scene.
Another police officer was seriously injured.
All the appellants were arrested at different times and places within 48 hours of the death of Inspector Mutedza. Together, with thirteen co-accused persons, the appellants appeared before the High Court. They applied for bail. After reading documents filed of record and hearing argument for and against the application, the court a quo granted bail, on conditions, to twelve accused persons. Bail was refused in respect of eight accused persons including the appellants. Cynthia Manjoro was later granted bail. In the determination of the application, the court a quo applied section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides:
“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 jeopardize 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.”
The court a quo interpreted the provisions of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. It said:
“The section makes it clear that an accused person is entitled to be released on bail unless the court finds that it is in the interests of justice that he or she be detained in custody. The detention of the accused person in custody can only be in the interests of justice if one or more of the factors mentioned in section 117(2) is or are established against him. The release of an accused person on bail is aimed at enabling him to attend trial while out of custody. It does not mean that he or she has no case to answer. On the other hand, the detention of an accused person in custody is meant to secure his or her attendance to stand trial, if there are genuine grounds for believing that the factors set out in section 117(2) have been established against him. That is why the seriousness of the charge that the accused is facing is not, on its own, enough to deny an accused person bail.”
The court a quo continued:
“The court must therefore endeavour to strike a balance between the interests of justice and the accused's liberty. Section 117(1) leans in favour of the liberty of the accused person, hence the use of the words '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.' The intention of the legislature is obviously to make section 117 consistent with the presumption of innocence until proven guilty. The proof, or lack of it, can only be established at the accused's trial.”
The learned Judge said:
“I am satisfied that with stringent bail, applicants who have not shown a propensity to abscond can be granted bail. I am, however, also satisfied that those who have shown a propensity to abscond should not be granted bail as they are flight risks. This calls for an assessment of each applicant's circumstances as per the State and applicants' evidence and submissions. I appreciate the need to treat jointly charged accused persons equally, but, where a distinction can be shown between bail applicants, their individual cases can be treated differently.”
The court a quo found that each of the seven appellants had shown a propensity to abscond. They were found to be flight risks and not suitable candidates for admission to bail.
