BHUNU
J: The 29 accused persons are charged
with murder as defined in section 47 of the Criminal Law (Codification and
Reform) Act [Cap. 9:23]alternatively
public violence as defined in s 36 of the Act. They are alleged to have killed
a policeman on dutyin the course of politically motivated violence on 29 May
2011.
The
bulk of the accused persons having previously been granted bail are in custody
by operation of law in that they were remanded in custody interms of s66 of the
Criminal Procedure and Evidence Act [Cap.
9:07]. The section requires that an accused person be remanded in custody
upon indictment to the High Court for trial.
The
accused persons appeared before this Court for trial on 12March 2012. Although
the State was ready and prepared to proceed to trial, all the accused persons
objected to take the plea saying that they needed more time to prepare their
respective defences. This necessitated the postponement of the trial for more
than a month to next term.
Having
declined to take the plea the accused persons mounted an application for bail
pending trial premised on the alleged weaknesses of the State Case. Both the
State Case and the defence cases were however, not before the Court for
assessment. That being the case, the Court found it inappropriate if notimpossible
to assess the relative strength of the state case against the defence case. For
that reason the Court ruled in terms of s 117 (6) as read with Part one of the
Third Schedule to the Criminal Procedure and Evidence Act [Cap. 9:07] that the bail application be held in abeyance until such
time that the accused will have pleaded and the Court furnished with the
accused's respective defence outlines so as to make a value judgment on the
merits in respect of each accused person's entitlement to bail.
It
is pertinent to note that the section gives special exceptional protection to
law enforcement officers such as the police, public prosecutors and judges
against being murdered in the course of duty or circumstances related thereto.
This is because their employment exposes them to the danger of being murdered
in the course of duty as happened in this case.
The
law therefore requires that where an accused person is alleged to have murdered
a law enforcement officer in the course of duty and in this case a police
officer, the accused be detained in custody until such time he has proved to
the presiding judge's satisfaction that there are exceptional circumstances
justifying his release on bail. This is for the simple but reasonable
justification that law enforcement officers operate in dangerous environs prone
to violent reprisals. The section provides as follows:
"(6) Notwithstanding
any provision of this Act, where an accused is charged with an offence
referred to in-
(a)
Part I of the Third Schedule, the
judge or (subject to proviso (iii) to section 116) the magistrate hearing the
matter shall order that the
accused be detained in custody until he or she is dealt with in accordance with
the law, unless the accused, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the judge or magistrate that exceptional
circumstances exist which in the interests of justice permit his or her
release;"
Part one of the Third Schedule reads:
"THIRD SCHEDULE (S 32, 116, 117(6) and 123)
OFFENCES
IN RESPECT OF WHICH POWER TO ADMIT PERSONS TO BAIL IS EXCLUDED OR QUALIFIED
PART
I
1. Murder,
where-
(a)
(b)
the
victim was-
(i)
a law
enforcement officer or public prosecutor performing his or her functions as
such, whether on duty or not, or a law enforcement officer or public prosecutor
who was killed by virtue of hisor her holding such a position,"
I understand the term "exceptional circumstances"to mean
extraordinary factors or state of affairs outside common human experiences. What
this means is that the applicants in this case bear a higher onus of proof than
those in an ordinary murder case not involving the killing of a law enforcement
officer or police officer.
It is self evident that while Section
117 confers the right to bail on an accused person detained in custody, that
right is not absolute but a qualified privilege which can either be granted or
denied by the courts depending on the exigencies and circumstances of each
given case and the prevailing law.
While the special protection given to
law enforcement officers might seem discriminatory to the ordinary man, this is
justifiable discrimination sanctioned by the law. Judicial officers have no
option but to interpret and apply the law as it is. The postponement of the
bail application and invitation to provide the required information was
therefore not a denial of bail or punitive measure but an essential procedural
step prescribed by law. I might as well mention in passing that the same
protection is accorded to witnesses who might be murdered for being witnesses.
The Court adopted this procedure because the section
is couched in peremptory terms. In all their submissions not once did I hear
counsel making reference to the existence or otherwise of exceptional
circumstances justifying the release of any of the accused persons on bail. In
fact by adopting that procedure the Court was going out of its way to afford
the applicants a chance to comply with the law otherwise it could simply have
dismissed the bail application for want of compliance with the law.
The second
reason is that, although the accused persons are jointly charged the Court has
to determine each accused person's entitlement to bail individually on the
merits because their circumstances are different. The Defence however made a blanket
application for bail without specifying the merits of each applicant's
entitlement to bail individually, case by case.The mere fact that the accused
are jointly charged does not mean that they are subject to mass trial.
The Court believes that it gave each accused person
a reasonable opportunity to prove that there are exceptional circumstances
justifying his or her release on bail. This is because the time within which
the accused are required to plead and furnish the required information relating
to the existence of exceptional circumstances justifying their release on bail
is something that is entirely within their knowledge and control. Deserving
accused persons are therefore in control of their destiny in this respect. The
longer it takes them to provide the required information the longer it will
take them to earn their release on bail. The choice is entirely their own.
Aggrieved by my order postponing the bail
application and inviting the accused to plead and furnish the required
information to enable the Court to make a just determination of this matter the
applicants now seek leave to appeal to the Supreme Court.
Their main complaint is that the Court erred at law
in failing to consider the bail application in terms of s 167 as read with s
117 of the Criminal Procedure and evidence Act. The appeal is premised on the
assertion that the Court erred in postponing the matter and inviting the
accused to provide the required information. They however acknowledge that the
information requested by the Court is necessary for the just determination of
the case but argue that such information can be gleaned from elsewhere other
than the pleas and defence outlines. They do not however state or specify where
in this case the information can be gleaned from. They also do not state who is
to glean such information from the bits and pieces of unsubstantiated data
presently before the Court.
It appears the applicants are now casting the onus
on the Court to forage and scrounge for the requisite information from
unspecified sources of questionable authenticity. I have however already
demonstrated beyond question that the law casts a heavy burden on the applicants
to satisfy this Court and not the Supreme Court, not only that they are
entitled to bail, but that there are exceptional circumstances entitling them
to bail.
In my view it is remiss of defence counsel to run to
the Supreme Court when asked to provide information that may result in his
clients being granted bail by this Court. It is plainly obvious that the
Supreme Court cannot provide the required vital information required by law. It
is only the applicants who bear the burden of providing such information. They
cannot avoid discharging that onerous duty by hiding behind the Supreme Court.
It is therefore, my considered view that whatever
prejudice deserving applicants may have suffered and continue to suffer arising
from the delay in determining this matter is self inflicted.Had the required
information been furnished they would long have been out on bail as soon as the
required information was made available to the Court's satisfaction.
In any case, the purported appeal to the Supreme
Court arises from a complaint that this Court adopted the wrong procedure in
calling for information through pleas and defence outlines when it could forage
and scrounge for such information from some other unspecified sources. It is
trite that alleged procedural irregularities are dealt with by way of review
and not appeal. It is not necessary to cite any authorities for such a well
established rule of law. It is therefore; manifestly clear that counsel adopted
the wrong procedure in approaching the Supreme Court such that the purported
appeal to the Supreme Court is vitiated by irregularity and is unlikely to see
the light of day.
Again the
delay and resultant prejudice in this respect is self inflicted. Had counsel
adopted the correct procedure he would have found his way to the Supreme Court
long back without first seeking the leave of this Court and hopefully his
complaint would, by now have been addressed and redressed if there was any
merit in the complaint.
I now turn to consider the relief that the
applicants are seeking in the purported appeal. They seek an order directing
this Court to determine the bail application within 48 hours. Such an order
will be a brutum fulmen, that is to
say, a harmless thunderbolt of no force or effect. In the unlikely event that
such an order was ever to be given the end result will be highly predictable
and of no benefit to the applicants. As long as the information requested has
not been furnished, this Court is likely to dismiss the application for failure
to discharge the onus reposed on the applicants by the law I have already
adverted to above.
Having said that, and in the final analysis I come
to the conclusion that there is absolutely no merit in this application. I can
perceive no prospects of success on appeal. It is in the best interest of the
applicants that they should furnish the required information without any
further delay. I cannot perceive a situation where the Supreme Court will force
this Court to determine any bail application without the requisite information
prescribed by law. The applicants must provide the required information
according to law and await my determination. It is only then that those
aggrieved by my determination in this respect may approach the Supreme Court.
Approaching the Supreme Court at this juncture
cannot in my view save any useful purpose except to cause further prejudice to
the applicants in terms of expense and further detention to those applicants
who can prove the existence of exceptional circumstances to this Court's
satisfaction which entitles them to bail.
For the foregoing reasons the application for leave
to appeal to the Supreme Court cannot succeed. It is accordingly ordered that the
application for leave to appeal to the Supreme be and is hereby dismissed.
Zimbabwe
Lawyers for Human Rights, legal practitioners for the 1st
to 27th applicants.
Musendekwa
- Mutisi,legal
practitioners for the 28th to 29 applicants.
The Attorney General's office,legal practitioners
for the respondent.
