MUTEMA J: The applicants are facing a charge of contravening s 20 of the
Criminal Law (Codification and Reform) Act [Cap
9:23]
– treason. They have been in custody since May, 2007. Ever since their
incarceration they have mounted several unsuccessful applications for bail on
changed circumstances. The present is one such application, the last one having
been on 8 March, 2010 before MAKARAU JP (as she then was).
This time around the applicants
allege existence of changed circumstances based on two planks. The one relates
to the loss of two material State witnesses thus weakening the State case and
the other relates to their re-indictment following dismissal of their case by
MUSAKWA J on 9 July, 2010 in terms of s 160 (2) of the Criminal Procedure and
Evidence Act, [Cap 9:07].
six months having expired from the date of their committal without having been
brought to trial.
What happened, prompting MUSAKWA J
to invoke s 160 (2) of the Criminal Procedure and Evidence Act is that following
their initial indictment, the applicants (who were seven at the time) raised a
Constitutional issue in 2008 at the commencement of their trial. The issue was
duly referred to the Supreme Court for answering in terms of s 24 of the
Constitution of Zimbabwe. This resulted in the stay of the criminal trial
pending the Supreme Court decision in the Constitutional issue referred to it.
The Supreme Court's decision went against the applicants. This was in December,
2009. When the criminal trial came up before MUSAKWA J in June/July 2010, the
applicants applied for dismissal of their case in terms of s 160(2) of the
Criminal Procedure and Evidence Act which MUSAKWA J granted. Thereafter,
warrants for the applicants' liberation were issued. Only the seventh accused
who was at Harare Central Remand Prison was released. The six applicants who
were at Chikurubi Maximum Prison were not released as they were also in
custodial remand on allegations of conspiracy to escape from lawful custody.
The State subsequently had the six
applicants re-indicted at the Magistrates' court for the treason charge. The
seventh accused could not be re-indicted because he had absconded soon after
his release from Harare Remand Prison. The applicants filed a notice of appeal
against their re-indictment contending that there is no such procedure provided
for in the Criminal Procedure and Evidence Act. They also lodged this
application for bail in respect of the treason charge citing that their
re-indictment constitutes a change in circumstances. The State opposed the
application arguing that there are no changed circumstances.
The applicants were denied bail on
previous occasions mainly on the premise that it was not in the interest of
justice to admit them to bail. Now, the question is whether the applicants in
the present application, have demonstrated that “there has been a change in the
circumstance of the matter to such an extent that the threat to the due
administration of justice found by the previous court has been removed and that
the due administration of justice is now safeguarded from interference or
frustration”. per MAKARAU JP (as she then was) in Albert Mugove Matapo & 6 Others v the State HH48-2010 at pp3-4.
In that case the loss of the two State witnesses by death and abscondment was
raised and was ruled as not constituting a change in circumstances,. That
factor was again raised in casu. I
have not been able to fathom that it has since transformed itself into a change
in circumstances.
As regards the re-indictment,
whether such a procedure exists in our criminal procedure or not does not fall
for my resolution. This is an issue for resolution by the appeal court. Whether
it constitutes a change in circumstances is within the purview of my
resolution. As far as I view it I cannot comprehend it amounting to a change in
circumstances given the facts of the matter. The failure to comply with s
160(2) of the Criminal Procedure and Evidence Act was neither the fault of the
State nor that of the applicants. It was systemic delay which occasioned it.
How else could applicants, who had not been acquitted by the mere dismissal of
their case, have been brought back for trial except via re-indictment? I find
that nothing has changed in circumstances. If anything the change in circumstances
based on the re-indictment relates to the seventh accused's abscondment. That
change constitutes an insurmountable difficulty besetting the applicants. The
applicants are also facing a charge of conspiracy to escape from a maximum
security prison. Their accomplice who was released from custody absconded and
could not be re-indicted together with the others. The totality of such conduct
paints a propensity to abscond. In the result, the threat to the due
administration of justice found by the previous court has not been removed. It
has in fact been worsened. The due administration of justice can only be
safeguarded from interference or frustration by denying the applicants bail.
In closing, there is one aspect I
must advert to. During submissions in reply, Mr Warara opined that it was misplaced to apply for bail following the
re-indictment. He said the applicants were effectively discharged for want of
prosecution in terms of s 321 of the Criminal Procedure and Evidence Act and in
terms of s 322 of the same statute they should not have been committed to
prison on re-indictment. There was therefore no need for them to apply for
bail. I do not believe that the quoted sections are applicable to this case.
Counsel was referred to these sections by a colleague soon after making his
submission and without sufficient time to thoroughly analyse them he ended up
confusing himself. If the sections are applicable and there was no need to
apply for the bail then he should have withdrawn the bail application when the
court asked him to do so but he did not want to commit himself. In the event
that the sections are applicable then the prayer should be revisited in a different
forum altogether instead of it mixing up with an application for bail.
In the event the application for
bail be and is hereby dismissed.
Warara &
Associates, applicants'
legal practitioners
Office
of the Attorney-General,
respondent's legal practitioners
