The opposition to this bail application graphical
demonstrates how officers prosecuting on behalf of the Prosecutor-General,
either by design or lack of understanding, have remained rooted in the past
without embracing the new Constitutional order when it comes to the issue of
bail.
It also shows why, what has been roundly referred to as the
re-alignment of laws to the new Constitution, should be prioritized in the
interest of the smooth administration of justice and good order.
This applicant for bail was arrested on 20 January 2016 by
Nyamandlovu police who preferred charges of rape against him….,.
The allegations against him, as appear on the Request for
Remand Form 242, are that:
“On 20 January 2016, at Stand 13 Goliths Village,
Nyamandlovu, the accused had sexual intercourse with the complainant, twice,
without her consent and threatened to assault her if she tells anyone. The
accused got into the complainant's bedroom hut whilst she was asleep, closed
her mouth, and pinned her down, and…, had sexual intercourse with her twice.”
Upon his initial appearance on these allegations, the
applicant was remanded in custody. He has approached this court seeking his
admission to bail pending trial. He states that he is a mere suspect who is
presumed innocent until proven guilty. Whatever evidence has been lined up
against him, it is yet to be tested at the trial. He is therefore entitled to
his liberty especially as he is of fixed abode, has no travel documents, has a
good defence to the charges, and, as such, he is not a flight risk.
The application is opposed by the State on essentially
three grounds, namely, that the applicant is likely to abscond; he is likely to
endanger the safety of members of the public; and is likely to interfere with
witnesses.
In formulating his opposition, counsel for the State relied
on the provisions of section 117(2) and (3) of the Criminal Procedure and
Evidence Act [Chapter 9:07].
Therein lies the problem because those provisions cannot be
said to be still part of our law. They have been relegated to the annuls of
history.
Section 117 provides:
“(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 person 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 jeopardise 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.”
Subsection (3) of section 117 of the Criminal Procedure and
Evidence Act [Chapter 9:07] deals with factors to be taken into account by the
court when considering whether the grounds set out in subsection (2) exist.
It is apparent from a reading of the foregoing provisions
that the onus was on the applicant for bail to satisfy the court that he or she
is a good candidate for bail. He had to show that the interests of justice
would not be prejudiced by his release on bail. In terms of section 117A(1) of
the Criminal Procedure and Evidence Act [Chapter 9:07], an accused person who
is in custody could apply for bail at anytime to a judge or magistrate, whether
verbally or in writing. In such bail application, he or she would be compelled
to inform the court of any previous convictions any pending charges against him
and whether he had been released on bail in respect of those charges.
The lawgiver has now made the admission of arrested persons
to bail a Constitutional right. This is by virtue of section 50(1)(d) of the
Constitution of Zimbabwe which reads:
“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 follows, therefore, that by Constitutional enactment, an
arrested person is entitled, as of right, to be released, either
unconditionally or on reasonable conditions, pending a charge or trial. It is
only where it is shown that there are compelling reasons justifying that
person's continued detention that an arrested person can be denied bail. A Constitutional
provision can never be more clearer.
All that an arrested person is required to do is to apply
for bail.
The onus of showing the existence of compelling reasons for
continued detention cannot possibly be his because he desires his release on
bail. Therefore, section 50(1)(d) of the Constitution has shifted the onus of
proof to the State to establish the existence of compelling reasons why the
arrested person should remain in detention….,.
It means that where bail is being opposed without reference
to compelling reasons for an arrested person's continued detention there is no
basis for opposition. The respondent appears caught in a time warp where it
continues, with nolstagia, to cling onto the grounds for denial of bail
contained in a provision that has long been rendered ineffectual.
As pointed out in S v Khumalo HB243-15, the State cannot
deny a person a fundamental right to admission to bail without satisfying the
requirement for denial of bail as set out by the Constitution. It is time that
the State seriously applied its mind before venturing to oppose bail because to
say that the applicant for bail will abscond, will endanger the public, and
will interfere with witnesses remain un-substantiated allegations which do not
meet the threshold of compelling reasons set by the Constitution.
For instance, nothing has been placed before me pointing to
any possibility of abscondment or interference.
The applicant resides in Binga. He allegedly raped a person
in Nyamandlovu and there is nothing to suggest that he will interfere with any
witness. I am therefore satisfied that the applicant is entitled to his release
on bail.
Accordingly, it is ordered, that;
1. The applicant is hereby admitted to bail on the
following conditions; that
(a) He deposits a sum of $100= to the Registrar of the High
Court, Bulawayo.
(b) He resides at Mayanda Village, Binga.
(c) He reports once a week, on Fridays, at Tinde Police
Station between the hours of 0600 and 1800 until the matter is finalized.
(d) He does not interfere with State witnesses.
