One wonders how such a piece of legislation has remained on the statute books of a country that purports to be democratic. No need to wonder. There is a party called Zanu (PF) and a wily character called Robert Mugabe in charge of the country. If your MP is Zanu (PF), please print this and give him a copy. - Editor
Section 121(3) of the Criminal Procedure and Evidence Act [CPE Act] enables the Attorney-General or his representative (prosecutors) to have an accused person who has just been granted bail by a judge or magistrate kept in detention for up to seven days simply by (the prosecutor) telling the court that he or she wishes to appeal against the grant of bail.
This provision has been misused so often that there is now a move to have it repealed by Parliament. The motion for permission to introduce a Private Members Bill to do this is currently in the House of Assembly. It is timely therefore to look at this part of the law, how it has been misused and how it has detracted from the justice system.
Section 121(3) provides that if a judge or magistrate reaches a decision to grant bail to an accused person, this is automatically suspended if, immediately after the decision, the judge or magistrate is notified that “the Attorney-General or his representative wishes to appeal against the decision”. The effect of this suspension is that the accused person must remain in custody for a further seven days while the Attorney-General or his representative decides whether or not to appeal.
· If an appeal is lodged within 7 days, the accused person continues in detention until the appeal is decided
[Note: Where an appeal is lodged, it should, because it concerns personal liberty, be decided by the judge dealing with it, whether in the High Court or the Supreme Court, within a few days of its lodging. The relevant rules of court require expeditious processing of such appeals. In practice, unfortunately, appeals can take far longer than a few days; for examples, see below.]
· If an appeal is not lodged within 7 days the accused person must then be released on bail.
· If, before the 7 day period expires, the prosecutor notifies the court that the State has decided not to appeal, the accused person must be released immediately, i.e., before the end of the 7 days.
The way section 121 (3) has been used by prosecutors has amounted to an abuse of the justice system, usurpation of the judicial role, violation of right to liberty and violation of the principle of equality of all before the law :
· Section 121(3) in practice has taken a judicial function away from judges and magistrates and allowed the Attorney-General representing the State, which is an interested party, to arbitrarily overrule, albeit temporarily, a judicial decision arrived at after hearing evidence and submissions from both accused and the State prosecutor.
· Frequently the effect of the section in practice is that an accused person remains an extra seven days or more in gaol on the prosecutor’s mere say-so.
· The statistics also show that since April 2008 this largely groundless use of section 121(3) has been almost invariably directed against human rights activists and political activists who are either members or supporters of MDC-T or proponents of views opposed to those of the former ruling party.
Comment: Any statutory provision that lends itself to arbitrary application is contrary to principles of good law. That section 121(3) has often been used arbitrarily without any real thought having been given to whether or not there is any basis for a State appeal is indicated by the number of cases in which the State has not even gone through the motions of lodging an appeal – and by the State’s abysmal, near-zero success rate on appeal – see figures below.
Zimbabwe Lawyers for Human Rights documented the use of section 121(3) in cases that came to their attention over the period April 2008, just after the March 2008 general election to February this year, showing:
· out of the 30 cases listed by ZLHR in which section 121(3) was invoked, the State actually appealed in only 7 (so 23 out 30 people were kept in the filthy remand cells and deprived of their freedom, yet the state did not even follow through with the appeal)
· of those 7 appeals that were lodged, 6 were entirely unsuccessful, resulting in the release of the accused persons on the conditions originally granted by the judge or magistrate.
· in the single case in which the State had a partial success, its application for leave to appeal to the Supreme Court succeeded in respect of only one the three accused persons involved.
Note: Far more than 30 individuals were involved in these cases, because some of them featured multiple accused, e.g. the case involving Hon Douglas Mwonzora MP and 22 co-accused from his MDC-T party.
Section 121(3) first appeared in the CPE Act in 1975, before Independence. It is widely perceived therefore as a colonial hangover originally designed to empower prosecutors to take oppressive action against accused persons from the oppressed majority during the liberation struggle.
The constitutionality of section 121(3) has been raised in at least two cases, both of which still await set-down for hearing in the Supreme Court after referral to that court by magistrates in terms of section 24 of the Constitution:
· MDC-T Director-General Toendepi Shonhe fell victim to the provision in June 2009. He appeared before a magistrate charged with perjury and was granted bail. The prosecutor invoked section 121(3) and Mr Shonhe was kept in remand prison for an additional eight days until a judge dismissed the State’s appeal and he was released. Meanwhile, Mr Shonhe’s lawyer had applied to the magistrate for the constitutionality of section 121(3) to be referred to the Supreme Court and the application was granted by the magistrate.
Nearly three years later the Supreme Court is yet to deal with the case.
· MDC-T MP Douglas Mwonzora and 22 co-accused MDC-T members were arrested in February 2011 on charges of public violence allegedly committed following an MDC-T meeting in Nyanga. When the Nyanga magistrate granted them bail a few days later, the State invoked section 121(3), resulting in all 23 remaining in custody for 25 days until their release following the dismissal of the State’s appeal by a High Court judge. In this case, too, the magistrate acceded to a defence request to refer the constitutionality of section 121(3) to the Supreme Court.
Inevitably section 121(3) is invoked far more frequently at Magistrates Court level. This is because in most cases accused persons first appear in the magistrates court following arrest by the police, and magistrates have power to grant bail on most charges [except for certain particularly serious offences]. If after invoking 121(3) in the magistrates court, the Attorney-General follows up by lodging a formal appeal – then that appeal is heard in the High Court.
The Attorney-General has also used section 121(3) where bail has been granted by High Court judges. For example:
· After MDC-T Minister of Energy and Power Development Elton Mangoma was arrested on 25th March 2011 on a charge of abuse of public office, Justice Kudya granted him bail. The prosecutor immediately invoked section 121(3) and followed this up with an application for leave to appeal to the Supreme Court [when bail is granted in the High Court a State appeal against it has to be heard in the Supreme Court].
On 4th April the prosecutor’s application to leave to appeal was heard by Justice Musakwa, who threw out the application as having no merit and ordered Mr Mangoma’s immediate release. As it was Mr Mangoma had been remained in custody for 11 days. If leave to appeal to the Supreme Court had been granted, it would in fact have meant Mr Mangoma being detained for much longer.
· Section 121(3) was also invoked against a decision of Justice Ndou granting bail in the Mthwakazi Liberation front treason case in Bulawayo.
The December 2011 remarks of Justice Mathonsi, dismissing a State appeal against bail granted to three Media Monitoring Project of Zimbabwe staffers arrested in Gwanda, are instructive:
‘Section 121(3) ... gives the appellant (the Attorney-General) power to veto the grant of bail to an accused person ... To the extent that it interferes with the liberty of a person who has been admitted to bail, that discretion should be exercised judiciously because the legislature, in its wisdom, entrusted the appellant with huge powers. For that reason, it is unacceptable for any representative of the Attorney-General to shoot up the moment bail is pronounced and invoke section 121 without applying his/her mind to the basis for such invocation. I have said that there is no merit in the grounds of appeal, which do not show any misdirection at all on the part of the court a quo. In fact those grounds are legendary by their lack of merit. One is therefore left wondering whether the appellant’s representative did apply his mind at all. The abuse of section 121 to keep persons in custody who have been granted bail has tended to bring the administration of justice into disrepute. It must be discouraged by all means and the time has come to announce to law officers prosecuting on behalf of the Attorney-General that section 121 should be invoked only in those situations where there is merit in the appeal ... Persons who have been properly granted bail should not be kept longer in custody merely as a way of punishment. That is an improper exercise of the discretion given to the Attorney-General by section 121.”
Incarceration in remand prison involves much more than loss of liberty. Conditions in Zimbabwe’s prisons are so notoriously bad that a spell in remand prison routinely exposes a prisoner to appallingly unhygienic conditions, the risk of disease, overcrowding, lack of proper diet, lack of adequate medical treatment, etc. – there have been numerous protests about inhuman conditions in the country’s prisons.
Often there is a loss of income, particularly in the case of the self-employed. And the disruption of a detainee’s normal family life inevitably leads to worry and stress for parents, spouses and children, and friends. After the relief to the accused, their family and colleagues of being granted bail, to have this relief immediately cancelled by a spurious invocation of section 121(3) can be devastating.
Bennett Case: Senator Roy Bennett was arrested on sabotage and weapons charges on 13th February 2009. He was granted bail by a High Court judge 11 days later, but remained in custody when the prosecutor invoked section 121(3). The State’s appeal to the Supreme Court went ahead but was dismissed by the Chief Justice on 11th March. Mr Bennett had spent nearly four weeks in custody, with a gap of 15 days between the initial decision to grant him bail and the dismissal of the State’s appeal. He described the conditions in the Mutare Remand Prison as “the worst I have ever experienced”. In May 2010 Mr Bennett was acquitted on the sabotage and weapons charges at the close of the State case in his High Court trial.
Hon Elton Mangoma: A side-effect of Hon Mangoma’s extended stay in remand prison was his inability to carry out his duties as an MDC-T negotiator in important GPA talks; because of the timing, some have suggested this was the intended effect of the action taken against him.
Christmas in gaol for Lynnette Karenyi MP: In a more recent case Hon Lynette Karenyi, MDC-T MP for Chimanimani West, had eight days in custody courtesy of section 121(3), missing Christmas with her family. Arrested on 19th December on a charge of insulting the President, she was granted bail by a magistrate on 20th December, and only released on 28th December after the prosecutor failed to lodge an appeal.
Gandhi Mudzingwa and 6 other abductees: In April 2009, Mr Mudzingwa and 6 of the other abductees were finally granted bail by a High Court judge after over three months in remand prison [and varying periods of unlawful State detention as “disappeared” persons before they were initially taken to court]. The prosecutor ensured another 7 days of detention by invoking section 121(3) – and then failing to lodge any appeal.
Cases of long delay before release: There are several examples of prolonged detention pending hearing and decision of appeal:
· Eric Matinenga  Shortly after the March general election, Eric Matinenga, newly elected MDC-T MP for Buhera West [later to be Minister of Constitutional and Parliamentary Affairs in the Inclusive Government] found himself was arrested on allegations of public violence shortly after he had obtained a High Court order directing the Zimbabwe Army to stop harassing people in his constituency.
A magistrate granted bail and the prosecutor invoked section 121(3). As a result Mr Matinenga was kept from his busy practice as a leading advocate, and from his party duties, for some four weeks. It took that long for the State’s appeal against his bail to finalised; the appeal was dismissed. At his later trial on the public violence charge Mr Matinenga was acquitted.
· Douglas Mwonzora MDC-T MP for Nyanga North, and 22 co-accused MDC-T members . This group was in custody for 25 days until a High Court judge dismissed the State’s appeal. One of the accused, Headman Nyakauru, aged 82, was denied access to private medical practitioners and his health deteriorated rapidly, resulting in his death a few weeks after his release. Mr Mwonzora’s prolonged absence from his duties as COPAC co-chairperson for the MDC-T undoubtedly slowed progress in the constitution-making process at a crucial time.
The cases show that magistrates and judges, having heard evidence and argument from both prosecutor and defence, are better able than prosecutors to make a balanced, rational decision on the merits of granting bail and any risks attached. It is the prosecutors who have frequently been shown to have acted hastily, arbitrarily or unwisely and unfit to wield the power given them by section 121(3). The reality seems to be that section 121(3) is both unnecessary and irredeemably open to abuse.
Magistrates and judges should be trusted to make responsible use of their powers to grant or withhold bail to accused persons. And prosecutors should be deprived of their present power to block release on bail by simply saying the State wishes to appeal.
MP’s Bid to Introduce Bill to repeal Section 121(3)
When the House of Assembly adjourned on 28th March for a six-week recess, it was only part of the way through debating Hon Gonese’s motion asking the leave of the House to introduce his Private Member’s Bill to repeal section 121(3) of the Criminal Procedure and Evidence Act. Debate is due to continue when the House resumes sittings on 15th May. The House has yet to hear the views of the Minister of Justice and Legal Affairs, who is the Minister responsible for the Criminal Procedure and Evidence Act, on Hon Gonese’s proposal. Only if the motion is approved will Hon Gonese be permitted to hand in his Bill for official printing and gazetting and subsequent consideration by the House.
The present Parliamentary recess – through to 15th May – presents an opportunity for lobbying MPs. Now is the time to make sure that when they come to vote on Hon Gonese’s motion as many MPs as possible are aware of the feelings of their constituents and civil society organisations on whether this much-criticised statutory provision should be retained on the statute book.
At this point in the debate MPs seem to have split along party lines – with MDC-T MPs supporting Mr Gonese and giving numerous examples illustrating the State’s abysmal record in its use of section 121(3) and the consequential injustice suffered by the individual citizens concerned; and ZANU-PF defending it as in some way essential to prevent anarchy and chaos and the commission of serious crimes, but without giving any examples of cases in which section 121(3) has actually been effectively used for these purposes.
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