At
one stage, the applicant, a local citizen, faced allied charges in
both Zimbabwe and Botswana relating to the unlawful hunting, killing
and possession of rhinoceros horns, in contravention of kindred
statutes that deal with the protection and preservation of wildlife
in the two countries. The charges arose out of the applicant's
alleged conduct, in league ...
At
one stage, the applicant, a local citizen, faced allied charges in
both Zimbabwe and Botswana relating to the unlawful hunting, killing
and possession of rhinoceros horns, in contravention of kindred
statutes that deal with the protection and preservation of wildlife
in the two countries. The charges arose out of the applicant's
alleged conduct, in league with other persons, both in this country
and in Botswana, and at different times. In one statement, which was
later retracted, the Zimbabwean police had described him as -
“…,
a leader of a syndicate whose membership extends beyond the
geographical boundaries of this country. His ability to link up with
undocumented foreign nationals suggests knowledge on his part of the
means that are employed to smuggle them into and out of the country
without being detected…,.”
On
30 June 2017, I granted the applicant bail pending trial in respect
of the Zimbabwean charge of unlawfully hunting and killing a
rhinoceros, in contravention of the Parks and Wildlife Act [Chapter
20:14].
At that stage, the applicant had not yet been arrested in respect of
the charge in Botswana. No information pertaining to his alleged
criminal activities there was as yet available to the court.
The
bail conditions were more stringent than usual. The applicant would
pay a recognizance in the sum of $200=; surrender his passport; cede,
as collateral security, his right, title and interest in a certain
immovable property; and report to the police once every week.
Three
months later the applicant was back in court, this time seeking bail
in respect of the charge in Botswana. Soon after his release on bail,
in respect of the charge in Zimbabwe, he had been placed in custody
at the instance of the Botswana Government which had formally applied
for his extradition.
The
State opposed the application for bail. But, on 30 October 2017, I
granted it. The bail order was on the same terms and conditions as
the June 2017 order. The State had now withdrawn the charge the
applicant faced locally. He was in custody solely for the purpose of
extradition.
The
applicant had apparently skipped bail in Botswana. According to the
application for extradition that the Government of Botswana submitted
to the Zimbabwean authorities, he had been arrested in Botswana in
2012. Together with three other persons, all Botswana nationals, he
had been charged with the unlawful possession of a rhinoceros horn.
On 23 October 2012 he had been remanded out of custody on bail by a
Botswana Magistrate's Court sitting at Francistown. He would be
wanted back at that court on 29 November 2012 and subsequent months.
However, he failed to appear, either on that date, or on any other.
On 17 December 2014 the Botswana Magistrate's Court issued a
warrant for his arrest. The warrant was subsequently lodged with the
Zimbabwean authorities, eventually leading to his arrest in July
2017.
The
current bail application pending extradition was lodged in September
2017. However, it had to be postponed. The information initially
placed before the court was woefully inadequate to enable an informed
decision to be made. Eventually, some salient details emerged,
albeit, sporadically.
The
applicant said soon after his release on bail by the Botswana court,
he had simply come back to Zimbabwe because his daughter had fallen
sick. He had told no one. He claimed he had not appreciated that he
had to tell anyone.
I
did not believe him. Nonetheless, this was just one of several
factors that I would take into account.
In
terms of the Botswana Wildlife Conservation and National Parks Act
[Chapter
38:01],
the equivalent of our own Parks and Wildlife Act, a conviction for
unlawful possession of a rhinoceros horn carries a mandatory fine of
one hundred thousand Botswana Pula [P100,000=] and imprisonment for
fifteen [15] years. Comparatively, that is quite steep. The
equivalent in our jurisdiction, for a first offence, is a mandatory
minimum of nine [9] years imprisonment, which can be reduced if there
are special circumstances justifying a lesser sentence.
The
State's opposition to the applicant's release on bail largely
hinged on the fact that the applicant was on a warrant of arrest
because he had skipped bail in Botswana. It said a person such as him
was not a suitable candidate for bail because he had already shown a
propensity to evade justice.
Undoubtedly,
there are obligations thrust on State parties to extradition
agreements or treaties to make such instruments effectual by handing
over cross-border criminals to thwart their designs to escape justice
for crimes committed by them in one country and taking refuge in
another. JOHN Van der BERG: Bail
– A Practitioner's Guide,
3rd
ed. Juta…, says a [judicial officer] must exercise his power to
grant bail with extreme caution in a manner that would not conflict
with treaty obligations between the foreign State and the custodian
one.
Initially,
the applicant's application for bail pending extradition
substantially relied on the fact that he was facing another charge
here in Zimbabwe and that therefore the extradition process had to be
postponed pending the finalisation of his trial locally. In this
regard, he had already applied to the Ministry of Home Affairs, the
relevant authority, for that postponement. The application to the
Ministry was based on section 28 of the Extradition Act [Chapter
9:08].
It says:
“28
Postponement of extradition
If,
in terms of this Act, a request is received for the extradition of a
person against whom criminal proceedings have been instituted in
Zimbabwe or who is undergoing any punishment in Zimbabwe in respect
of any offence, the Minister may postpone the issue of an authority
to proceed in terms of this Act or direct that all proceedings in
connection with the extradition of the person in terms of this Act be
postponed, as may be appropriate, until -
(a)
The criminal proceedings have been completed and the person concerned
has undergone any punishment that may have been imposed upon him in
respect of those proceedings; or
(b)
The person concerned has undergone the punishment that he was
undergoing when the request was received; as the case may be:
Provided…,[irrelevant]…,.”
However,
the State's withdrawal of the Zimbabwean charge completely disarmed
the applicant with regards to his reliance on section 28 of the
Extradition Act [Chapter
9:08].
His
further argument for bail reverted to the usual bail principles as
set out in the Constitution of Zimbabwe, the Criminal Procedure and
Evidence Act [Chapter
9:07],
and case authority. Section 26 of the Extradition Act [Chapter
9:08]
says:
“26
Bail and legal representation
(1)
A person who has been arrested for the purposes of extradition in
terms of this Act shall have the same right to bail and legal
representation as if he were arrested in connection with a criminal
offence for which he was to be charged within Zimbabwe.
(2)…,
[irrelevant]..,.”
In
considering this application, I took into account the fact that the
criminal justice process is such that there is an inevitable delay
between the arrest of the accused and his subsequent trial.
Extradition worsens the situation. It is an inherently cumbersome
process which often involves extensive communication and negotiations
between participating states, followed by a trial, and, in some
instances, an appeal or review. It follows that an accused can be
deprived of his liberty for lengthy periods: see JOHN Van der BERG:
Bail
– A Practitioner's Guide,
3rd
ed. Juta…,. Therefore, in such situations, the court should lean in
favour of granting bail unless compelling reasons militate against
doing so.
Our
new constitutional dispensation stresses the presumption of innocence
of an accused person until proved guilty by a trial process: section
70. The right to bail, in the absence of compelling reasons to deny
it, has been entrenched as one of the fundamental human rights and
freedoms: section 50.
In
the present application, the major factor militating against the
applicant's quest for pre-trial liberty was the fact that he had
skipped bail in Botswana and absconded to Zimbabwe. However, other
than the statements and depositions by the Botswana prosecuting
authorities; the evidence in support of the charge there; and the
warrant of arrest against the applicant, the bail order of the
Magistrate's Court at Francistown was not placed before me. As
such, none of the counsel could enlighten me as to the bail
conditions, if any, imposed by the Botswana court. However, this
factor alone was not decisive. It was common cause that the applicant
had jumped bail.
The
other negative factor against the applicant was that from the
perspective of the prescribed penalty, unlawful possession of a
rhinoceros horn seems a very serious offence in Botswana. It also is
in Zimbabwe. It is a bail principle that the seriousness of an
offence is a relevant factor to take into account in an application
for bail, the assumption being that the prospect of a lengthy
custodial sentence is an inducement for an accused person to abscond.
But, again, this factor is not, by itself, decisive: see S
v Hussey
1991
[2] ZLR 187 [S]…,
and Aitken
& Anor v Attorney General 1992
[1] ZLR 249 [S].
No single factor is by itself decisive anyway.
The
major factor in favour of the applicant was that the Botswana charge
pre-dated the Zimbabwean one, but that despite his having been
released on bail in respect of the Zimbabwean charge, he had not
absconded. The State did not refute his submission that he had
religiously complied with the bail conditions locally.
The
other factor in favour of granting bail was that the order of June
2017, whose conditions the applicant was willing to abide by, was
quite stringent. The quantum of bail amounts generally ordered by
this court at this station is $50=. Sometimes they are as low as
$20=, or even less; sometimes even free. Rarely are they pegged at
$100= or above. But, in the June 2017 order, the bail amount had been
assessed at $200=, which, incidentally, the applicant had struggled
to raise
(it
was made known that despite the order having been granted on 30 June
2017, it was not until mid-July 2017 that the applicant finally
raised the bail money).
On
top of that, should he abscond, the applicant stood to lose his
family residence which he had ceded as security. Therefore, coupled
with the fact that the charge in Botswana was mere allegations which
he denied, he stood to lose more if he absconded than if he were to
wait and be extradited to Botswana to clear his name there.
After
weighing all the above factors, and taking into account the
constitutional imperatives aforesaid; the age of the applicant [52
years old]; his marital status [married with four children], and his
assurance that whenever the authorities from the two countries were
ready for his extradition, he would present himself, I considered
that it was in the interests of justice that he be released on bail
upon the same stringent conditions as before.
