MAFUSIRE J: The applicant
was arrested for rape on 5 October 2016. He was remanded into custody. He
applied for bail pending trial. I reserved judgment. This now is my judgment.
The facts were somewhat scanty.
The complainant is a six year old female minor. The applicant is her uncle in
the sense that he is her mother's brother.
There was a conflict on
the age of the applicant. On the request for remand, Form 242, his age was put at
twenty four years. However, in the bail response by the State, his age was put
at nineteen years. This was based on an age estimate following a dental
examination that was carried out in a previous conviction for aggravated
indecent assault. The applicant himself insisted he was seventeen years old, and
therefore a minor.
The reason for the conflict
on the applicant's age was that he had no identity documents of any sort. Both he
and the State resorted to some deductive process to estimate his age. They both
started counting from the previous conviction. It was common cause that the previous
conviction was in 2011. The applicant has insisted in his current application
that at the time he was only ten years old and that he did not even know that
he was a committing an offence as he thought he was playing with the victim. If
applicant was ten years old in 2011, then now he must be fifteen. But he has
said he is seventeen years old. He has no supporting document of any sort, only
his word of mouth.
On the other hand, the
State has insisted that the applicant had been fourteen years old at the time
of the previous conviction. His age was estimated by a dental surgeon following
some medical examination of his teeth after which a purported affidavit in
terms of s 278[2] of the Criminal Procedure & Evidence Act, Cap 9: 07 [“the C P & E Act”] was
filed. So five years down the line, the applicant should, according to the
State, be nineteen years old, and therefore a major.
The State has further argued
that at any rate, if the applicant had been ten years old at the time of the
previous conviction, then he would have been doli incapax [i.e. below the age of criminal responsibility]. He would
not have been charged with a criminal offence, let alone sentenced to six
strokes with a rattan cane as was done.
Mr Chuma, for the applicant, challenged the purported affidavit by the
dental surgeon and the State's reliance on it. He said it was not a sworn
statement, therefore not an affidavit. As such, it should not have been taken
at face value as actual proof of the applicant's age at the time.
I shall come back to this
conflict later.
In this application the applicant
has completely denied the rape accusation. He said it never happened. He said
the State's case was very weak. As such, there was no inducement for him to
abscond if freed on bail. He said he has no intention to abscond.
The applicant has also
relied on the new Constitutional. The right to bail is now one of the
fundamental rights and freedoms enshrined in the Bill of Rights under Chapter 4
of the Constitution. Only unless there are compelling circumstances will an
accused person be denied bail. The onus rests on the State.
Mr Chuma argued that the recent amendment to the C P & E Act,
which by the insertion of s 115C, thrusts the onus on the accused to prove the
right to bail, is manifestly in conflict with the Constitution. As such, the
Constitution, being the superior law, should prevail. But Mr Chuma would not commit himself to urging
the court to make a specific declaration as to the constitutional invalidity of
the amendment, let alone to refer the matter to the Constitutional Court in
terms of s 175 of the Constitution.
To support his argument
that he will not interfere with witnesses, the applicant has offered to remove
himself from the village where the complainant lives and where the crime was
allegedly committed. He has opted to go and stay with some relatives in another
village which was said to be some fifty kilometres away.
The applicant said that
the police have already completed their investigations and that therefore there
is no likelihood of his interfering with witnesses.
The applicant offered
bail in the sum of $50. He said he is prepared to live with any strident reporting
conditions that the court might deem fit to impose.
In opposing bail, Ms Bhusvumani, for the State, argued that
there is a strong inducement for the applicant to abscond because the case
against him is very strong. Among other things, the rape happened, not once but
twice on two nights in succession. On the first occasion, the complainant
reported the abuse the following morning to one Francisca Vengai [“Francisca”]
who, unfortunately, took no action. On the second occasion the complainant again
reported to Francisca. This time Francisca made a report to the village
headman. Eventually the matter was reported to the police. Although the medical
examination showed that the complainant's hymen had not been broken as such, it
showed some interference in that it was found to have stretched. Ms Bhusvumani argued that at least there is
evidence of legal penetration. She said that is sufficient for a charge of
rape.
Ms Bhusvumani further argued that the complainant's previous
conviction, though not of rape but of aggravated indecent assault, was still of
a sexual nature. It was a very relevant conviction. As such, the applicant had
a propensity to commit sexual offences.
Ms Bhusvumani also argued that at six years of age, the complainant is
a vulnerable witness. At trial she will only testify with the aid of special
facilities that, among other things, prevent direct communication with the
applicant. Therefore, the likelihood of interference by the applicant, if out
on bail, is high.
Regarding the shifting of
onus from the State to the accused person, Ms Bhusvumani conceded that s 115C of the CP & E Act, seems in direct
conflict with the Constitution. As such, should the issue of onus of proof turn
out to be decisive, the court cannot avoid making a declaration of constitutional
invalidity and referring the matter to the Constitutional Court.
Regarding the applicant's
offer to remove himself from the village where the crime was allegedly committed,
Ms Bhusvumani found it of no
consequence, especially if the applicant was going to be staying with some
relatives, albeit fifty kilometres away. She said the alleged rape was one in the
family. Usually in such circumstances relatives try and interfere in favour of
protecting the perpetrator. Therefore, the applicant's suggestion did not
remove the apprehension of interference. At any rate, Ms Bhusvumani concluded, the applicant had submitted nothing like a
sworn statement from those relatives confirming their willingness to take him
on.
That was the case before
me.
Firstly, I resolve the
conflict regarding the age of the applicant in favour of the Sate. Apart from
his say so, there was no other material or information to support his claim
that he was only ten years old at the time of his previous conviction. He did not
say who told him he was ten years old at the time or when he might actually have
been born. There was just nothing on which he based his age estimate.
On the other hand, in
computing the applicant's age in the absence of birth documents, at least the
State produced some material which would generally be admissible in terms of
statute. It was a scientific estimation of a person's age by a medical
examination of his teeth. In the case of the applicant's previous conviction,
the results of that medical examination had been admitted in the regional
magistrate's court which convicted him. That court would have been satisfied of
the applicant's age. Otherwise it would be an outrageous miscarriage of justice
if it not only convicted a minor lacking criminal capacity by reason of age,
but also would go on to sentence him to six strokes.
The applicant's emphasis
that the dental surgeon's statement should only have been by way of an
affidavit before it was given any weight is not always the practice. In bail applications,
the evidence does not always have to be in affidavit form. In most cases, ex parte statements are made by both
sides, without formality: see S v Ndhlovu and S v Nichas.
Therefore, I find that
the applicant was fourteen years old at the time of his previous conviction and
that now he is nineteen years old.
On the issue of whether
or not the State has a strong case against the applicant, again there was a
conflict on some relatively important detail. In its bail response, the State
averred that the rape happened twice, on each occasion the complainant reporting
to Francisca. On the other hand, the applicant, who has maintained his denial,
argued that the claim that he raped twice was not backed by the State's own
papers. He pointed out that the Form 242 made reference to only one incident. But
Ms Bhusvumani explained that the
State's response was compiled when the investigations had finally been completed.
Among other things, the complainant's statement to the police referred to being
raped twice.
In my view, whether the
rape happened once or twice will be a matter for the trial court to resolve. At
this stage the court's dominant pre-occupation is whether, if freed on bail,
the accused will stand trial or abscond, and whether he will not interfere with
witnesses.
In
terms of s 117[2][a] of the C P & E Act, the grounds upon which a court may
deny bail are the likelihood that if released:
1. the accused will endanger the safety of
the public, or of any particular person; or
2. the accused will commit an offence
referred to in the First Schedule [i.e. any offence the minimum penalty for
which exceeds six months without the option of a fine, and any conspiracy,
incitement, attempt or being a participant in any such offence]; or
3. the accused will not stand trial or
appear for sentence; or
4. the accused will attempt to influence or
intimidate witnesses or to conceal or destroy evidence; or
5. the accused will undermine or jeopardise
the proper functioning of the criminal justice system, including the bail
system; or
6. in exceptional circumstances, there is a
likelihood that the release of the accused will disturb the public order or
will undermine public peace or security.
Section 117[3][a] says
that in considering whether there exists a likelihood of the accused
endangering the safety of the public, or of any particular person, or whether
he will commit a First Schedule offence, the court shall take into account,
among other things, any disposition of the accused to commit a First Schedule
offence as evident from his past conduct.
In my view, the previous
conviction carried by the applicant is, metaphorically, his albatross. The
conviction was, undoubtedly, a First Schedule offence which, but for his age at
the time, would definitely have earned him a term of imprisonment exceeding six
months. Section 66 of the Criminal Law [Codification and Reform] Act, Cap 9:23 [“the Criminal Law Code”] provides
that a conviction of aggravated indecent assault carries the same penalty as
that for rape. The maximum penalty for rape is life imprisonment.
The applicant's previous
conviction was very relevant to the charge he now faces. Both are offences of a
sexual nature the prescribed minimum sentences for which are identical. The
State says the rape in question happened two nights in succession. Prima facie that makes a strong for the
prosecution case, especially given the extra detail about the complainant's consistent
reports to Francisca.
Therefore, I consider
that the State may have shown a disposition by the applicant to commit First
Schedule offences as envisaged by s 117[2][a][i], as read with s 117[3][a][iv]
of the C P & E Act.
In
considering whether, if released on bail, there is a likelihood that an accused
will not stand trial, s 117[3][b] of the C P & E Act directs the court to
take the following factors into account:
1. the
ties of the accused to the place of trial;
2. the
existence and location of assets held by the accused;
3. the
accused's means of travel and his or her possession of access to travel
documents;
4. the
nature of the offence or the nature and gravity of the likely penalty;
5. the strength of the case for the
prosecution and the corresponding incentive of the accused to flee;
6. the efficacy of the amount or nature
of the bail and enforceability of any bail conditions;
7. any
other factor which in the opinion of the court should be taken into account;
In the present case,
Counsel substantially touched on almost all the above factors, albeit in
varying degrees of emphasis. Fireworks were largely on paragraphs 4 and 5.
The issue of the nature
of the case, the gravity of the likely penalty, the relative strength of the
case for the prosecution and the corresponding incentive of the accused to flee
are factors that help the court to gauge the pull of the inducement to abscond.
The general premise is that the stronger the State's case is, the greater the
likelihood of absconding, and vice versa:
see Fletcher Dulini Ncube v State. Of course, by itself this
factor is not decisive.
In my view, a final
decision on the bail factors cannot be made without reference to the new
Constitution.
In my recent judgment in S v Jealous Nemaringa and Anor I said:
“In my view, in an application for bail
pending trial, the starting point is to consider the dispensation brought about
by the new Constitution in May 2013. Section 50[1][d] of that Constitution says
that any person who is arrested must be released unconditionally or on
reasonable conditions, pending a charge or trial, unless there are compelling
reasons justifying their continued detention. It is now a fundamental human
right and freedom that an arrested person be charged or tried out of custody.
That he or she may remain incarcerated until the charge or trial is rather the
exception. There ought to be some compelling reasons justifying it. This, in my
view, is an exceptionally high burden. And it is now provided for in no less a
law than the Constitution.”
On the question of who
the onus to prove compelling circumstances lies, I had this to say:
“The Constitution does not say directly
on who this onerous burden lies. But manifestly, it must be the State. That, in
my view, and from a purposive approach, is clearly the spirit of the
Constitution. But the CP & E Act has recently been amended, effective 17
June 2016. Section 115C has been
inserted. It first states that in any application, etc. where, among other
things, the grant or denial of bail is in issue, the grounds specified in s
117[2], being grounds upon which a court may find that it is in the interests
of justice that an accused person should be detained in custody until he or she
is dealt with in accordance with the law, are to be considered as the compelling
reasons for the denial of bail by a court.”
Section 115C[2][a][ii]A
and B of the C P & E have reversed the onus of proof from the State to the
accused in respect of certain crimes. The new provision relevant to this case
is s 115C[2][a][ii]A. After editing out irrelevant matter, it reads:
“[2] Where
an accused who is in custody in respect of an offence applies to be admitted to
bail -
[a] before a court has convicted him or her
of the offence -
[i]…………………………………………………
[ii] the accused person shall, if the offence
in question is one specified in -
A. Part 1 of the Third Schedule, bear
the burden of showing, on a balance of probabilities, that it is in the
interests of justice for him or her to be released on bail, unless the court
determines that, in relation to any specific allegation made by the
prosecution, the prosecution shall bear that burden.”
Rape is one of the Third
Schedule offences in respect of which the power to admit persons to bail is
excluded or restricted. In the Jealous
Nemaringa case above, I said the constitutionality of, inter alia, s 115C of the C P & E Act had not been raised, let
alone argued. So I expressed no further view on it. But before I abandoned the
point, I said this:
“… Mr Chavarika's argument seemed to me to run counter to the ethos or
principle or spirit of the new Constitution. In terms of it the emphasis is on the
right of accused persons to personal liberty. Among other things, one should
not be deprived of one's liberty without just cause [s 49[1][b]]. Once arrested
and not released, a person is entitled to be brought to court within
forty-eight hours or else he or she must be released immediately, unless a
competent court has authorised his or her continued detention [s 50[2]]. It
does not matter that the forty-eight hours may lapse on a Saturday, Sunday or a
public holiday.
Probably to emphasise the
importance of the right to personal liberty, parts of s 50 empower anybody to
bring an application for a habeas corpus
in respect of someone who, among other things, is being detained illegally, so
that they may be released or brought before the court for the lawfulness of their
detention to be justified. To cap it all, any person who has been illegally
arrested is entitled to compensation from whosoever might have been responsible,
except if there is a law that has been passed to protect judicial officers or
other public officers acting reasonably and in good faith.
But sub-section [6] of s 50 speaks
directly to the situation of Accused 2 herein. It says any person who is
detained pending trial for an alleged offence, and is not tried within a
reasonable time, must be released conditionally or unconditionally. Furthermore,
in terms of s 70[1][a], an accused person is presumed innocent until proved
guilty.”
In the present case, the
constitutionality of s 115C[2][a][ii]A has squarely been raised. Both Counsel
readily agree that it being in conflict with the Constitution, it must give
way. It is akin to a clash between a locomotive and a motor vehicle at a rail-road
crossing. Such a clash only goes one way – in favour of the train.
Mr Chuma was not keen that in the event that I find the provision to
be unconstitutional, as indeed I have, I should then go on and refer the matter
to the Constitutional Court for a final declaration of constitutional
invalidity in terms s 167[3] and s 175[1] and [4] of the Constitution. He was
merely content to urge me to follow the Constitution and to ignore any other dissident
provision.
On the other hand, Ms Bhusvumani felt that once a declaration
of constitutional invalidity is made by a subordinate court, the issue must, as
a matter of course, be referred to the Constitutional Court for a final
declaration of invalidity.
However, unlike the
situation that MUREMBA J and I dealt with in the cases of S v Willard Chokurumba and S v Walter Mufema & Ors respectively, the referral
of a matter to the Constitutional Court for a declaration of constitutional
invalidity is now governed by the Constitutional Court Rules that were
published under S I61of 2016. In terms or r 24 thereof, a subordinate court wishing
to refer an issue to the Constitutional Court for a final declaration of
constitutional invalidity, must request the parties to make submissions on the
issue and state the specific constitutional question to be referred.
A referral to the
Constitutional Court may also be made upon request by a party. Part of the
material to be referred may include a statement of agreed facts, or the
evidence led by the parties, and the specific findings of fact by the
subordinate court. The record is then referred via the Registrar.
In
casu,
it is my finding that s 115C[2][a][ii]A is ultra
vires Chapter 4 of the Constitution. However, since none of the conditions
for referral as prescribed by r 4 of the Constitutional Court Rules has been
fulfilled, the issue shall not be referred.
In my view, there are no compelling
circumstances to deny the applicant bail pending trial. Ultimately, the risk of
absconding is an ever present concern whenever a person has been arrested for
an offence. The likelihood of that actually happening is generally greater
where the offence in question is a serious one and the penalty likely to be severe.
But this does not constitute compelling circumstances.
That the victim of the
alleged offence is a vulnerable witness and/or that the accused is a family member
are also relevant factors. But again these do not constitute compelling circumstances.
There is no question, especially from the review records from the magistrate's
courts, that the rape of minor girl children by male members of the family is
disturbingly far too high, probably calling for extra judicial interventions.
But paradoxically, that makes such cases no more exceptional for purposes of
bail applications than other equally serious offences where bail is granted. A
bail enquiry is not of a penal nature.
At nineteen years old,
the applicant is still relatively young. He is unemployed and is therefore
dependent on others for maintenance and support. He has no personal identity
document of any kind, let alone a passport. That does not mean he will not run
away if released on bail. But having considered all the other surrounding
circumstances it is felt that the risk of flight is minimal. The bail will be
coupled with stringent conditions.
There has been no
supporting statement from the applicant's relatives whom he said live in
another village fifty kilometres away and who are allegedly prepared to take
him in until his trial. The applicant must file a sworn statement or statements
by those relatives affirming their alleged commitment to take him in. Thereupon
he will be released into their custody.
In the circumstances, subject
to this judgment, the applicant is hereby granted bail pending his trial and shall
be released upon the following terms and conditions:
1. The
applicant shall deposit with the clerk of court, Mwenezi, bail in the sum of
fifty dollars [$50];
2. Upon
such payment and the fulfilment of all the other pre-release conditions, the
applicant shall be released into the custody of his uncle and aunt at Mubaiwa
Village, Chief Chitanga, Mwenezi, where he shall continue to reside until the
commencement of his trial;
3. The
applicant shall report to the Zimbabwe Republic Police, Mwenezi once every
Friday between the hours of 06:00 hours and 18:00 hours;
4. The
applicant shall not interfere with any State witnesses.
8 November 2016
Chuma, Gurajena
& Partners,
legal practitioners for the applicant
National Prosecuting Authority, legal practitioners
for the State
