Bail re: Murder iro Mob Assault, Multiple Assailants or Murder By a Group

HH182-12 : TUNGAMIRAI MADZOKERE AND TWENTY-EIGHT OTHERS vs THE STATE
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and MHANDU

It is pertinent to note that section 117(6) of the Criminal Procedure and Evidence Act [Chapter 9:07] 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 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 the law enforcement officers operate in dangerous environs prone to violent reprisals.

Section 117(6) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides as follows:

"(6) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in-

(a) Part 1 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 (S32, 116, 117(6) and 123) Offences in respect of which power to admit persons to bail is excluded or qualified

Part 1

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 his or her holding such a position."

I understand "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.

While the special protection given to law enforcement officers might seem discriminatory to the ordinary man, this is a justifiable discrimination sanctioned by 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 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 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.

Appealed SC07-12 : TUNGAMIRAI MADZOKERE and LAZARUS MAENGAHAMA and STANFORD MAENGAHAMA and PHINEOUS NHATARIKWA and STANFORD MANGWIRO and YVONNE MUSARURWA and REBECCA MAFUKENI vs THE STATE
Ruled By: MALABA DCJ

The facts of the case are these.The appellants are facing a charge of contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; it being alleged that, on 29 May 2011, they killed Petros Mutedza, who was an Inspector in the Zimbabwe Republic Police….,.The fact that the life of a police officer was ...

The facts of the case are these.

The appellants are facing a charge of contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; it being alleged that, on 29 May 2011, they killed Petros Mutedza, who was an Inspector in the Zimbabwe Republic Police….,.

The fact that the life of a police officer was lost in the course of execution of his duty of enforcing the law is an important factor to be considered in striking the balance between the interest of the individual in personal liberty pending trial and the interests of society in having those accused of crime on reasonable suspicion tried and punished if convicted.

The interests of fairness and justice require that the matter be approached dispassionately in accordance with the law.

Inspector Mutedza was called to disperse an unlawful gathering of members of the youth league of the Movement for Democratic Change (MDC-T) party at Glen View 3 Shopping Centre. The same group of about 50 youths had earlier on been dispersed by other police officers from Glen View 4 Shopping Centre.

The deceased and his team of police officers, in uniform, arrived at Glen View 3 Sshopping Centre where the youths were participating in an MDC(T) T-shirt visibility day campaign strategy. They all wore MDC(T) red and white T-shirts and chanted slogans and sang party songs. The youths were also braaing meat and drinking beer at Munyarari Night Club. The deceased, and five other police officers, entered the night club to tell the leaders that the gathering had to disperse because it had not been authorized by the police. It is alleged that the group of youths then shouted "matatya ngaurawe", which, when literally translated, means: "kill the frogs." The police were then attacked with various missiles including stones, bricks and bar stools. They were forced to run out of the night club. The deceased mistook a Nissan Hardbody motor vehicle, allegedly being driven by the fourth appellant, for the police vehicle. He ran to it for cover. When the deceased tried to open the door of the car to seek refuge, the fourth appellant is alleged to have driven away from the deceased for about four (4) metres. That is when the deceased was struck on the head with a half brick. He fell to the ground. The mob of youths set upon him kicking and trampling his body until he lost consciousness and died. It is alleged that some of the youths jumped into the Nissan Hardbody and the fourth appellant drove them away from the scene at high speed. Cynthia Manjoro is also alleged to have driven away her vehicle from the scene with some of the youths who had attacked the deceased. It is alleged that MDC (T) youths who remained behind removed their party T-shirts to avoid detection and left the scene.

Another police officer was seriously injured.

All the appellants were arrested at different times and places within 48 hours of the death of Inspector Mutedza. Together, with thirteen co-accused persons, the appellants appeared before the High Court. They applied for bail. After reading documents filed of record and hearing argument for and against the application, the court a quo granted bail, on conditions, to twelve accused persons. Bail was refused in respect of eight accused persons including the appellants. Cynthia Manjoro was later granted bail. In the determination of the application, the court a quo applied section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides:

“117. Entitlement to bail

(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 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 jeopardize 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.”

The court a quo interpreted the provisions of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. It said:

“The section makes it clear that an accused person is entitled to be released on bail unless the court finds that it is in the interests of justice that he or she be detained in custody. The detention of the accused person in custody can only be in the interests of justice if one or more of the factors mentioned in section 117(2) is or are established against him. The release of an accused person on bail is aimed at enabling him to attend trial while out of custody. It does not mean that he or she has no case to answer. On the other hand, the detention of an accused person in custody is meant to secure his or her attendance to stand trial, if there are genuine grounds for believing that the factors set out in section 117(2) have been established against him. That is why the seriousness of the charge that the accused is facing is not, on its own, enough to deny an accused person bail.”

The court a quo continued:

“The court must therefore endeavour to strike a balance between the interests of justice and the accused's liberty. Section 117(1) leans in favour of the liberty of the accused person, hence the use of the words '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.' The intention of the legislature is obviously to make section 117 consistent with the presumption of innocence until proven guilty. The proof, or lack of it, can only be established at the accused's trial.”

The learned Judge said:

“I am satisfied that with stringent bail, applicants who have not shown a propensity to abscond can be granted bail. I am, however, also satisfied that those who have shown a propensity to abscond should not be granted bail as they are flight risks. This calls for an assessment of each applicant's circumstances as per the State and applicants' evidence and submissions. I appreciate the need to treat jointly charged accused persons equally, but, where a distinction can be shown between bail applicants, their individual cases can be treated differently.”

The court a quo found that each of the seven appellants had shown a propensity to abscond. They were found to be flight risks and not suitable candidates for admission to bail.

HH254-12 : DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE
Ruled By: MWAYERA J

The seven applicants approached the court on/with an application for bail pending trial.

The applicants are facing one count of public violence as defined in section 36(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and one count of murder as defined in section 47 of the same Act.

It is alleged, that, on 26 May 2012 the applicants, who are Zanu PF supporters, acting with common purposes, teamed up with other five Zanu-PF supporters, and, being armed with logs and stones, went and attacked MDC-T party supporters who were attending a police-sanctioned rally thus disturbing the peace and proceedings; and that on the same day, the applicants, and others, teamed up and assaulted Cephas Maguru with blunt objects resulting in his death.

The respondent opposed the application for bail pending trial.

Counsel for the applicants submitted that all the applicants were suitable candidates for bail. In written submissions, he outlined the personal circumstances of each of the applicants and pointed out that they all voluntarily went to the police station upon being advised to attend.

The applicants counsel submitted, orally, that, the State case was weak as no one had identified the applicants and that they were just implicated since they hold positions of authority in the local district Zanu-PF structures.

He further presented that the applicants would not interfere with the witnesses in any manner because they did not know the witnesses.

He argued, that, the applicants were suitable candidates for bail since there was nothing to induce or tempt them to abscond faced with a weak State case.

Counsel for the respondent buttressed his written submissions in opposition orally.

He highlighted that the State case is strong given that the applicants were positively identified at the scene by the complainants in the public violence and that there was no question of mistaken identity since this was in broad daylight and the complainants and the applicants stay in the same neighbourhood.

He argued that the likelihood of interference with witnesses and investigations was high given the influential positions the applicants held.

These factors, coupled with the nature of allegations, were taken as likely to induce the spirit of abscondment.

The respondent's counsel further argued, that, the applicants should not be granted bail as this would cause public outrage.

It was apparent from submissions by both counsel that they were relying on provisions of section 116 and 117 of the Criminal Procedure & Evidence Act [Chapter 9:07].

The criminal hallmark, that the accused is presumed innocent till proven guilty, is clearly spelt out from the wording of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 117(1) of the Criminal Procedure and Evidence Act reads:

“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”

The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.

Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.

Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:

“(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 or 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(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.

If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.

The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.

In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.

This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.

The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.

Having been presented with the applicants personal circumstances and argument that they are suitable candidates for bail, on one hand, and the respondent's grounds that the applicants are not suitable candidates for bail, it remains for the court to apply the factors to the applicants.

I propose to start with the aspect of likelihood to interfere with witnesses and investigations first.

The allegations are said to have occurred at a shopping centre in a neighbourhood where all the applicants reside, and, obviously, even if some passers-by and outsiders had come to attend an MDC-T rally some of the witnesses would be members of the local community. It would be stretching one's imagination too far to point out that all the witnesses are not known to the applicants because there is no indication that villagers had, prior, been told not to visit the shopping centre.

Given the applicant's leadership position in their political party, the State's fear that they can exert influence on witnesses is not baseless but real.

Given the nature of the charges the applicants are facing, public violence and murder by a group, the time the State has taken to investigate cannot be said to be unreasonable moreso given that there are other accused persons who are said to be still at large.

Paragraph 7.2 of the respondent's response talks of investigating likely to be completed by 16 June 2012 thus opening other avenues to the applicants.

As it stands now, the likelihood of interference with witnesses and investigating is high.

The charges that the applicants are facing, and the manner in which the offences are alleged to have been committed, denotes the seriousness of the offences.

The court is alive to the fact that seriousness, on its own, is not reason for denying bail for the obvious reason the applicants/accused are innocent till proven guilty; but, as correctly observed by the respondent's counsel, that, when viewed in conjunction with other facts, like strength of the State case; that is that all the applicants were at or in the vicinity of the scene of crime and were identified by witnesses neighbours, then, the natural fears that attach to the possible sentence in the event of conviction can induce or tempt the applicants into absconding.

The court is alive to the personal circumstances of all the applicants which are basically what was submitted in writing in the applicants Bail Statement.

They are Zimbabweans of fixed abode, but, the circumstances of this case, that is, the nature of charges, likelihood of abscondment, the likelihood of interference with witnesses, render imposition of bail conditions indecisive.

Further, in considering factors highlighted earlier in section 117(b) of the Criminal Procedure and Evidence Act, the circumstances of the present case are the exceptional circumstances envisaged where it would be contra interest of justice to release the applicants on bail where such is likely to disturb public order and security and undermine public peace.

The allegations, as observed by counsel for the respondent, were politically-motivated, such that, release of the applicants on bail, at this stage, is likely to cause public outrage and thus undermine public order and security while at the same time undermining the objectives or proper functioning of the criminal justice system including the bail system (section 117(iv) of the Criminal Procedure and Evidence Act).

There is no basis for treating the seven applicants differently in the present case.

The principles governing the application for bail pending trial, though bail should be allowed in the interest of the individual liberty unless it is not in the interests of justice, when applied in relation to the applicants, clearly shows that admission of the applicants to bail would jeopardise and not safeguard the proper administration of justice (given the likelihood of interference with witnesses and peace, threat to public security and order, and the likelihood of absondment).

The application for bail pending trial is accordingly dismissed in respect of all the applicants.

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Bail re: Murder iro Mob Assault, Multiple Assailants or Murder By a Group

HH182-12 : TUNGAMIRAI MADZOKERE AND TWENTY-EIGHT OTHERS vs THE STATE
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and MHANDU

Appealed SC07-12 : TUNGAMIRAI MADZOKERE and LAZARUS MAENGAHAMA and STANFORD MAENGAHAMA and PHINEOUS NHATARIKWA and STANFORD MANGWIRO and YVONNE MUSARURWA and REBECCA MAFUKENI vs THE STATE
Ruled By: MALABA DCJ

HH254-12 : DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE
Ruled By: MWAYERA J

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Bail re: Murder iro Mob Assault, Multiple Assailants or Murder By a Group

HH182-12 : TUNGAMIRAI MADZOKERE AND TWENTY-EIGHT OTHERS vs THE STATE Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and MHANDU

Appealed SC07-12 : TUNGAMIRAI MADZOKERE and LAZARUS MAENGAHAMA and STANFORD MAENGAHAMA and PHINEOUS NHATARIKWA and STANFORD MANGWIRO and YVONNE MUSARURWA and REBECCA MAFUKENI vs THE STATE Ruled By: MALABA DCJ

HH254-12 : DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE Ruled By: MWAYERA J

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Law Portal
Zimbabwe

HH182-12 : TUNGAMIRAI MADZOKERE AND TWENTY-EIGHT OTHERS vs THE STATE
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and MHANDU

Appealed SC07-12 : TUNGAMIRAI MADZOKERE and LAZARUS MAENGAHAMA and STANFORD MAENGAHAMA and PHINEOUS NHATARIKWA and STANFORD MANGWIRO and YVONNE MUSARURWA and REBECCA MAFUKENI vs THE STATE
Ruled By: MALABA DCJ

HH254-12 : DAVID CHIMUKOKO and GRACIANO KAZINGIZI and BIGGIE OFFICE and RAPHEL BOBO and PERKINS KARIKOGA and PHILLIP KATSANDE and ERICK CHATIZA vs THE STATE
Ruled By: MWAYERA J