This
is an application for bail pending trial, which application is opposed by the
respondent.
The
genesis and historical background of the case is as stated below.
The
applicants, whose ages range between thirty-five to seventy-eight, are being
charged with murder. They all reside at Makhulela Village in the remote area of
Plumtree District. It is alleged that on the 5th day of September
2009 at Balisi Sibanda's Homestead, Makhulela, they unlawfully, and wrongfully,
assaulted Jele Moyo and Ngwenya Dube, who died two days later.
This
is what the respondent stated in its submissions, and is disputed by the
applicants.
These,
of course, are still allegations which will have to be proved beyond reasonable
doubt in court.
The
question then, is, should the applicants be admitted to bail or not?
The
respondent vigorously opposed this application on the basis that -
(1)
They are likely to abscond, even if they have no passports.
(2)
They are likely to interfere with witnesses in the village as all of them are
villagers; and
(3)
Their release will disturb public order, or undermine public peace or security.
The
objections raised by the respondent are generally valid, and the provisions of
section 117(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] are
clear. These, however, are guidelines, and not an end to themselves.
In
my considered view, the granting of bail should be arrived at after careful
consideration of the real possibility of abscondment and interference with
State witnesses. Such considerations must take into account a suspect's
personal circumstances, and the circumstances surrounding the commission of the
offence.
The
submission by the applicants that the deceased died as a result of ingestion of
poison, which was forced on them by a mob, stands uncontroverted. If this turns
out to be the correct position at the trial, it will, no doubt, have been
prejudicial to the applicants who enjoy the operation of the principle of the
presumption of innocence until proven guilty.
The
question of abscondment has been raised as one of the reasons for the
opposition of the granting of bail
It
is common knowledge that, in the present day Zimbabwe, people have a tendency
to travel in and out of the country without valid travel documents, or no
documents at all. While this is a reality, in my view, it is not proper to deny
a suspect bail on that basis alone. Each case must be determined on its own merits.
If all cases are treated the same, on that basis, it will result in serious
prejudice to those who reside near our borders.
The
applicants, and other villagers, live on the Botswana border. It is well-known
that these villagers are tribally linked to Botswana. They, therefore, travel
in and out of Zimbabwe at will, and at times without travel documents. To deprive
them of their liberty on that basis alone is, in my view, improper.
They
should not be shut out of the benefit of the presumption of innocence because
of their accidental geographical location.
In
addition thereto, the commission of this offence is hazily linked to them as it
appears that either the assault, or the force to take poison, was as a result
of over two hundred villagers who were present at Basili Sibanda's funeral.
This is confirmed by the investigating officer's statement that more “witnesses”
are yet to be arrested.
It
is also the respondent's view that they are likely to interfere with State
witnesses.
It
is trite that in order for this reason to stand, the State should state which
witnesses these are. The fact that the applicants live in the same village with
some perceived witnesses is not enough for the purposes of this bail
application.
It
is, further, their argument that their safety in the community is not guaranteed.
This,
indeed, may be so where there is evidence that the community is up in arms
against the perpetrators.
In
casu, that facts point to a scenario where the two deceased died as a result of
what over two hundred villagers perceived as a need to administer instant
justice. Therefore, the applicants' actions, if at all, are not viewed as
wrong, wrongly though of course. It is for this reason that they are likely to
receive sympathy, and, as such, fears of reprisals held by the respondent are
not justified in the circumstances.
This
is a case where the liberty of the applicants cries out loudly for justice,
and, accordingly, the following order is made -
Order:
The
applicants be and are hereby admitted to bail pending trial on the following
conditions -
(1)
That the applicants deposit each a sum of US$50= with the Assistant Registrar
of the High Court, Bulawayo.
(2)
That the applicants must not interfere with any State witnesses, as may be
indicated by the State, or the police.
(3) That the applicants report to Khame Police
Post, Plumtree, once a week on Wednesdays between 8am and 5pm until
finalization of their case.
