HUNGWE J, This is an application for bail pending
trial.
In
his statement in support of the application filed on 13 November 2009 in terms
of the Bail Rules the applicant makes the following averments.
He was arraigned before the Magistrate sitting
at Harare on 31 October 2009 facing two counts, firstly c/s/ 131 of the
Criminal aw (Codification & Reform) Act [Cap 9:23] as read with s 113 of the same Act, relating to an
unlawful entry and theft of an AK 47 rifles which occurred on 20 October 2009
at Pomona Military Barracks Armoury Harare, and secondly c/s 24(2) of the Law
and Order Maintenance Act [Cap 11:07]
alternatively c/s s22(1) of the Act relating to prohibition against Military
training or membership to a quasi-military organisation.
These
allegations arise from allegations which appear in Police Request for Remand
(Form 242). In respect of the first counts it is alleged in this form that the
applicant acting in concert with one Getrude and Army Officers who are at large
proceeded to One Engineers Support Regiment Armoury. There they cut hinges to
the screen doors to the armoury and forced open the armoury's twin doors using
an iron bar. They entered the armoury and stole 20 AK 47 rifles and one short
gun.
In respect of the second count nothing further
needs to be said of it as it fell away at the initial appearance in the lower
courts.
This
court therefore is seized with the application for bail in respect of the first
count.
In
his application applicant's submits that he works for the Movement for Democratic
Change as a Transport Manager. He resides at 74 Murara Road Mufakose, Harare. He has lived there all his life. He
is married with four children aged between 2 and 13 years. He earns US400-00
per month. He has never had a brush with the law all his life till now. He held
a passport which expired a month before he was picked up in connection with
these allegations. He has not applied for a new passport and has no valid
travel documents.
On the day of the alleged break and entry he
had spent the day at work and commuted home to his family and slept. He had not
gone anywhere else that night. He does not have a motor vehicle nor does he
have ready access to such.
About
his arrest he says he was virtually abducted by State agents at night and
kidnapped. He was not informed about the reason for his arrest nor were any
formal charges read to him. The abduction simply entered his house and began to
harass him and his family. He was force marched out of the house and pushed
into a motor vehicle and driven to Marimba Police Station.
He
was taken blind folded, from Marimba to a base whilst under physical assault.
He was forced to drink alcohol along the way.
From
the base applicant was taken blind folded to Harare Central Police Station. At
the Station he was not lodged in cells but put in the offices of the Law and
Order Section of the ZRP Harare Central Police Station.
He stayed there till 31 October 2009 when he
was taken to Court.
Whilst
in this office, Office 15, members of the ZRP and ZNA Military Intelligence as
well as Central Intelligence Organisation, took turns to assault and interrogate
him.
Between 27 October and 31 October 2009 open
hands, clenched fists, booted feet, and truncheons were used to assault him intermittently
In the process, he would be threatened
with death, asked to say his last prayers, firearms would be discharged and he
would be discharged and he would be told that they would be shooting other
people in his position.
He was denied food, access to medical
treatment, access to his legal practitioners and access to his relatives and
friends. He was forced to admit to crimes he had not committed.
He was injured in the process. He is now under
medial treatment.
In its opposition to bail the State submits
that there is a real possibility that the applicant will abscond when granted
bail, that is not on the interest of justice to grant applicant bail.
In an effort to give substance to these two
grounds the State called the Investigations Officer who is Superintendent
Charles Ngirishi to testify.
His testimony was that after the break in and
theft that occurred at Pomona Armoury on 20 October 2009 Police got information
suggesting that the applicant may have been involved in planning and executing
this criminal
They arrested applicant on 27 October 2009.
Upon his arrest, he did not have his cellphone. It was at his home. They
recovered it. Upon entering the message box they came across a message from one
Getrude which message appeared to warn applicant to be careful as he was
involved in the theft of firearms. The sms appeared to have been recorded on applicant's
phone around 23 October 2009.
On 18 October 2009 the Investigations Officer
says they arrested four more people in connection with the crime. The fifth
person is eluding arrest some of the people arrested are serving members of the
defence forces others are deserters. This arrest followed information received
from the some person who caused applicant's arrest. There is evidence on affidavit
from this informer implicating the applicant. One of the suspects also
implicates the applicant. The Investigations Officer states that he is looking
for five more members of the ZNA who are now on the run. He fears that
releasing applicant now may jeopardise the Police chances to arrest these
suspects.
The other reasons he gives in Section C of Form
242 are that the firearms are still to be recovered and that he may commit
other offences using the stolen weapons.
Needless to say the firearms were all
recovered. They were not recovered from the accused's on his indications. These
were recovered after the arrest of army personal. The fear that applicant may
commit further offence using these weapons therefore has no foundation. Further
it appears now that Police know the identity of those suspects who have not yet
been arrested. There is no suggestion that applicant knows these people at all.
When asked whether in his investigation he was
able to establish the motive behind the theft of the rifles, Supt. Ngirishi
told the Court that the suggestion was that the offence was committed in order
to arm would be robbers. But because of the quantities involved it was
speculated that they may have been stolen in order to sell to third parties.
Therefore as far as he was concerned the motive remains un-established He
however maintained that there was fear that the weapons will end up in MDC
activist hands. When asked in cross examination whether it is reasonable that
applicant would be approached by one of the suspects so as to buy the same
weapons he had himself stolen, the Investigations Officer suggested that the
person who wanted to approach applicant intended to make inquiries in respect
of how to dispose of the weapons.
He conceded that the suggestion that applicant
would buy the weapons or assist in their disposal would not make sense if applicant
had, as suggested by his informers, applicant took part in the theft of the
same weapons.
The applicant faces same charges. If he is
convicted he faces lengthy custodial sentence no doubt.
In order to determine whether or not to grant
our applicant bail the courts are guided by general policy. In our law an
accused person is presumed innocent until proven guilty by a court of competent
jurisdiction.
Where a person applies for bail, he has not yet
been tried, and the allegations against him have not yet been proven. Pre-trial
incarceration courts across the presumption of innocence as a person is being incarcerated
before trial despite the fact that he may be found not guilty when he is
eventually tried.
It appears to me that the rationale behind s
117(1) of the Criminal Procedure & Evidence Act is that whenever the
interests of justice will not be prejudiced by pre-trial release, the courts
should lean in favour of liberty and grant release on bail with or without
additional conditions.
The right to liberty is one of the most
fundamental human rights and should not be lightly interfered with the courts
therefore should always lean in favour of protecting a liberty unless the State
establishes necessity to deprive an accused person of his liberty, pending
trial
Thus s 117(1) of the Criminal Procedure & Evidence
Act establishes a general entitlement to bail unless the court finds that it is
in the interests of justice that the accused be detained in custody pending
trial.
It reads;
“Subject to this section, and s 22, 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”
In my respectful view, by granting an
entitlement to bail unless the interests of justice
require
that bail not be granted, the legislature has placed an onus on the State to
establish
that
there are clear grounds justifying the refusal of bail.
In the South Africa
case of S v Maki & Others (1)
1994(2) SACR B30(E) the court
stated
that the onus is on the State to show on a balance of probabilities that the
applicant's
further
detention is necessary for the proper administration of justice.
I am fortified in this regard by the
reasoning expressed in the following cases,
S v
Chiadzwa 1988(2) ZLR 19 (S)
S v
Hussay 1991(2) ZLR
261 (H)
S v
Ndlovu 2001(2) ZLR
261 (H)
S v
Ncube 2001(2) ZLR
556 (S)
S v
Biti 2002(1) ZLR
115 (H)
As for the present application there has
been no substantiation of the claim that accused
will
abscond if granted bail or that he will interfere with investigations, nor has
the State
been able
to establish how the interests of justice would be prejudice by releasing the
applicant
on bail.
I say thus because the State says a
message on applicant's mobile phone received four
days
before his arrest warned him to be careful as he was involved. There are two
interpretations
that can be put to this message.
The one
interpretation is that Getrude knew that applicant was involved in the theft of
firearms
at Pomona Armoury. She was warning him the police will be looking for him.
This is the version preferred by the State
as it says that message actually implicates the
applicant.
But another version is that this is too
vague a message for applicant to understand. He
was not
involved in a crime so he was not worried about it as he never understood it to
imply
that Police may link him to theft of firearms. This explains why he did not go
into
hiding.
He had nothing to hide away from.
In my view applicant is entitled to enjoy
his liberty. The evidence against accused is so
tenuous that
even if it exists it is only accomplice evidence which may not pass
admissibility
tests.
There is no sound reason to justify the
continued incarceration of the applicant.
In the premises his application succeeds.
There will be a grant of bail on the
following terms:-
1. The applicant shall deposit USD$500
dollars bail with the Clerk of Court, Harare
Magistrate's Court.
2. The applicant shall continue to
reside at 74 Murara Road,
Mufakose, Harare,
until the matter is finalised.
3. The applicant shall report two times
a week at CID Law & Order, Monday and Friday between the hours 6:00 am and
4:00 pm.
4. The applicant shall not interfere
with witnesses or investigations.
Mbidzo Muchadehama & Makoni, applicants' legal practitioners
The
Attorney General's Office,
respondent's legal practitioners
