MWAYERA J: The applicant approached the court with an
application for bail pending trial. The applicant is facing two counts of
criminal charges, firstly he is charged with section 45 (1) of the Parks
and Wildlife Act, [Cap 20:14] hunt or kill any specifically protected
animal and secondly unlawful possession of a dangerous weapon as defined in
section 28 (1) (e) of the Criminal Law (codification and Reform) Act [Cap
9:23]. It is the state's contention that the accused together with
accomplices entered Matendere ranch, Save valley conservancy, Bikita armed with
one AK47 rifle with a charged magazine plus 38 loose live rounds of ammunition
and an axe, whilst in the ranch the accused persons shot and wounded a
rhinoceros being a specifically protected animal.
The State opposed the application for bail on basis that admission of the
application to bail will put the interest of administration of justice into
jeopardy.
The applicant on the other hand presented argument through Mr Moyo that the
applicant is a suitable candidate for bail for he is a man of fixed abode and
is in a position to abide by any bail conditions suggested. Further correctly
advanced by the applicant's counsel is that he is presumed innocent till proven
guilty by a court of law.
Indeed in applications for bail the court has to seek to strike a balance
between the right to individual liberty on one hand the societal interest
that is, that the applicant should stand his trial thus uphold the interest of
administration of justice.
From the circumstancies of the case it is apparent that the applicant had
accomplices when the offences were allegedly committed one of the accomplices
was arrested and admitted to bail. The other accomplice is still at large. The
fact that the one accused is still at large does not assist the applicant's
position for it endangers the interest of ensuring that prosecution is done or
effected to its logical conclusion. The one accused was admitted to bail but
his circumstancies are different from the applicant in that he is not likely to
abscond the court's jurisdiction since he is a Zimbabwe National. The
circumstances of the applicant and that of his accomplice are different thus
justifying different treatment.
Given the fact that the applicant was arrested at the scene after a shootout
with police officers that is indicative of avoiding and evading the police.
Cumulatively one cannot help but agree with the state given that the applicant
is a foreign national the chances for him absconding are high. He envisaged
signs of avoiding and evading at the time of arrest. Further to induce him into
the temptation of absconding is the strength of the state case and the likely
penalty in the event of conviction. I am alive to the fact that bail is not in
anticipation of punishment but when admission to bail puts the administration
of justice at risk then bail ought not be granted.
The law is fairly settled in applications of this nature
that for considering is the right to individual liberty on one hand and the
interest of administration of justice on the other. Upon weighing this it is
clear the applicant is not likely to stand trial if admitted to bail and thus
the ends of justice will be frustrated. Accordingly the applicant is not
considered a suitable candidate for bail.
Application is accordingly dismissed.
Tamuka Moyo Attorneys,
applicant's legal practitioners
