by Dr Masimba Mavaza
Zimbabwe has been on the social media, news , whatsapp and any other news outlet took time to cast a flood light upon Zimbabwe. Indeed the world in now global village and any events in any country are spread to the whole world in a way similar to the eagle’s spreading of its wings. This means the social media age is upon us and we have people who are dedicated to spread anything about Zimbabwe at any time.
Unfortunately for Zimbabwe ninety percent of the social media users are natural opposers of the Zimbabwean government. So the social media tilts on one side and the world is fed with the opposing view. Zimbabwean politics is now played in the social media. To show how serious the war against Zimbabwe is on the social media a whole former minister of information has become a thump soldier dedicated to publish anything which is against Zimbabwe.
We must not forget that while he was the minister of Information Jonathan Moyo created a parallel structure which would feed him with information. The structures he made comprise of intelligence officers police officers army personnel and some senior civil servants. As a result Jonathan Moyo gets information before it is public. His aim is not to make people. Know but he is hell bent and sends this information with malice aforethought.
In the eye of a storm now is the refusal of bail for a political activist and a journalist Hopewell Chin’ono and Jacob Ngarivhume. Jon Sikhala becomes a new addition to the new residents of Chikurubi prison.
The narrative in the social media is that Zimbabwe has handled the cases of this suspects with an iron hand. The world over is demanding the release of all political prisoners.
Zimbabwe is a sovereign state and it must uphold its laws. While the offences faced by the trio of Job Sikhala Jacob Ngaruvhume and Hopewell Chin’ono is of a political nature the due process of the law is not political. The courts are not compromised and they are guided by laws of the land.
So the refusal of bail by courts is the decision of the court which is guided by the law. The surprising thing is that the international world is asking Zimbabwe to politicise the judiciary system. The president of Zimbabwe being a lawyer himself knows better not to interfere with the case when its in court. He should be applauded for withstanding the pressure from the international world to abuse his powers and release the suspects in court.
The former president Cde Mphoko is appearing in court to answer charges where he sprung accussed persons from court when he was an acting president of Zimbabwe.
To understand the position Zimbabwe is taking let us understand what is called bail.
Bail is the conditional release of an accused person (suspect) with the promise to appear in court when required. In some instances bail usually implies a bail bond, a deposit of money or some form of property to the court by the suspect in return for the release from pre-trial detention.
If a suspect is granted bail by the court, the public prosecutor will consider whether any bail conditions would help address any risks identified, such as being at the approved address between certain times. Thevsuspect may not be allowed to go to certain places, see certain people or be active on social media. This condition depends on the crime. If the crime was committed through internet an order to stay away from agents of internet such as phones pads and computers will be applied.
If an accused is granted bail it means he is allowed back into the public while he awaits trial or further police investigations, instead of being remanded in custody
A person can be released on bail at any point from the moment they have been arrested.
Discretion for granting bail lies with the authorities in charge.
Courts may refuse bail if:
the accused’s name and address cannot be obtained or verified. if there is any doubt that the details given are incorrect or false.
The bail application can be opposed by the state on essentially two main grounds namely that the applicant is facing a serious charge and if convicted he is likely to be sentenced to a lengthy term of incarceration. As a result that will motivate him to abscond. Secondly if the state fears that the accused is likely to interfere with witnesses if released on bail or that he will continue performing the offending actions he is in court for.
It should be borne in mind that the release of an accused person on bail pending trial is now a constitutional requirement because section 50 (1) (d) of the Constitution provides that an arrested person must be released unconditionally or on reasonable conditions, pending a charge or trial unless there are compelling reasons justifying their continued detention. It is true that in terms of section 115C of the Criminal Procedure and Evidence Act [Chapter 9:07] the burden of proving entitlement to bail pending trial falls squarely on the shoulders of an applicant facing a Serious offence.
In terms of section 117 (2) of the Act it is a compelling reason to deny bail where the accused person is a flight risk or his likely to interfere with witnesses or evidence. However before denying bail on those grounds the court must be satisfied that indeed such a risk exists. The state cannot succeed in contesting bail by merely raising those grounds without pointing to any evidence suggesting propensity to abscond or to interfere with witnesses.
In the case of Job Sikhala he has shown that he is a flight risk. From the day he was invited by the police for an interview Job went into hiding.
For a full month Job became a piece of a job to catch. He stayed in the bushes forests and ceilings. While he was running away from the law Job would post videos committing more crimes of inciting knowing very well that his actions are being called to question. So in the case of Job it was easy to show that Job has a propensity to abscond and has a penchant for continuing committing the crime he is called to order for.
In this clear case like Job’s case the twitting brigade are already labelling Zimbabwe as a vindictive nation.
In the present case, it is common cause that the accused Job was arrested while he was in hiding. What makes it worse is that Job is a lawyer so his hiding was indeed a premeditated effort of defeating the course of Justice. Although he is a lawyer and a member of parliament , who could have availed himself before the authorities. It is also common cause that a rumour was doing the rounds that the applicant was planning to escape to South Africa to avoid the arms of justice.
So it is malicious and knee shaking for the international world to demand release of a criminal who is in trial.
In the case of Chin’ono Magistrate Ngoni Nduna said “Chin’ono’s defence team had not presented new facts in the latest application and that the anti-government protests feared by the government could still happen.”
“He has been advocating for the removal of government from power,” Nduna said, justifying the ruling.
Chin’ono’s case presented drama which the international world is feeding from. In the court’s reasoning Chin’ono’s lawyer S’bale Beatrice Mtetwa was alleged to have made comments which attacked the court. The comments on the face book page attributed to Beatrice were contemptuous. So the court made a ruling that she must not appear before the court she was belittling.
Indeed one who frowns at court must not expect the court to smile at her. The only problem is the court convicted Beatrice before hearing her side. Indeed that was an error of judgement by the court. However an error by the magistrate does not mean that the magistrate is politically compromised.
Beatrice Mtetwa and her team have a right to appeal to a higher court. However the lawyers did well in giving another lawyer to deal with the case. If they had applied to suspend the hearing pending the high court’s decision it was going to prolong Hopeless s Chin’onos bod for freedom.
When assessing whether to grant bail, courts must – start with the presumption that an accused should be granted bail, unless there is a justified reason to refuse it.The court will consider:
the nature and seriousness of the crime;
the character of the suspect , his/ her past criminal record, associations and ties with the community;
the defendant’s previous record of abiding by his/ her bail conditions;
the strength of the evidence against the defendant.
Repeat serious offenders like Job Sikhala will only have a right to bail where there are exceptional circumstances.
Although the prosecutor did not rely on the fact that Job’s co-accused had not been granted bail, they in fact could raise this in argument at the hearing seeking that he be treated equally and remain in custody. Bearing in mind the inflammable situation the country is in it is expected that the state oppose this application quite vehemently. The onus in this matter is on the applicant to prove that there are exceptional circumstances that exist which in the interests of justice permit his release on bail see s 115 C (2)(a)(ii) B of the Criminal Procedure and Evidence Act [Chapter 9:07]. The section reads as follows:
“(2)(a) where an accused person who is in custody in respect of an offence applies to be admitted to bail before a court has convicted him or her of the offence …..
(ii) the accused person shall, if the offence in question is one specified in
B Part 11 of the Third Schedule bear the burden of showing on a balance of probabilities that exceptional circumstances exist which in the interests of justice permit his or her release on bail”. (the underlining is mine).
Treason is an offence specified in Part 11 of the Third Schedule thus it is clear that in casu the onus is on the applicant to show the existence of exceptional circumstances justifying applicant’s release on bail.
The shift of onus to an applicant in cases of the gravity of those under Part 11 of the Third Schedule to the Criminal Procedure and Evidence Act is a clear demonstration of the legislature’s intention that ordinarily accused persons charged there under ordinarily should be detained pending finalisation of the trial unless exceptional circumstances are proven justifying release on bail. It is clear that the legislature deliberately shifted the onus to prove compelling reasons justifying refusal of bail from the State and imposed the onus to justify release on bail by proof on a balance of probabilities of exceptional circumstances when one is facing Third Schedule Part 11 offences”
Despite what the world is saying about releasing the suspects we mist all agree
that the applicants are facing inherently serious offences which attracts a stiff penalty on conviction which sentence is a sufficient incentive for the applicant to abscond. Bearing in mind that Job has been running nothing can stop him from running if he is admitted to bail. This reasoning is not reached on political grounds but on legal grounds. The judge in the case of Commented that “As to whether overwhelming evidence exists proving that the accused will be convicted of the offence this court as a bail court cannot express a view apart from noting that the State believes its case to be very strong. However the provisions of s 115 C of the Criminal Procedure & Evidence Act under which the onus of justifying release on bail has been shifted to applicant in a bail application provides an exception to the authority of S v Hussey 1991 (2) ZLR 187 and the line of authorities establishing that the seriousness of the offence on its own cannot be a proper reason for denying an applicant bail. This is clear from the fact that the onus to prove compelling reasons for refusal of bail in the cases where such ratio was established was on the State. On introduction of s 115 C the threshold for the shift of the incidence of onus is reached by reference to the seriousness of the offence only in that once the offence charged is one under Third Schedule Part 11 of the Criminal Procedure & Evidence Act the shift becomes automatic without the additional need to demonstrate the existence of overwhelming evidence against the applicant.
Zimbabwe must know that in the bail applications of the terrible three, Job Jacob and Hopewell the courts were not satisfied that applicants have discharged the onus on them to prove on a balance of probabilities that exceptional circumstances exist which show that it is in the interest of justice that they be granted bail.
Instead of blaming the government of Zimbabwe and soiling our neautiful’ country’s name, we must know that the reasons applicants put forward in their different courts do not constitute exceptional circumstances at all. What constitutes exceptional circumstances are reasons so compelling in their nature they are out of the ordinary.
It is malice and mischief for the tweeting brigades to accuse the courts of state capture. Our courts are professional and so not hive
Political correct judgements. Their Judgements are legally correct and this the must not be treated as stooges in robes.
It is disgusting that our lawyers turn the noble legal profession to be a political one.
While lawyers do believe their clients’ stories they must not be turned to be political activists.
We have a very nobble court system in Zimbabwe and we must not mix court with politics.
However we should understand that a ground for opposing bail, namely that the applicant is facing a serious charge, cannot, on its own, be sufficient ground for denial of bail.
In that regard the presumption of innocence still operates in the applicant’s favour. In other words, no matter how serious the charge may be, the applicant is presumed innocent until proven guilty by none other than the courts