The Right To Bail

 Lawfare And The Right To Bail! 

It is trite law that in term of Section 50 (1) (d) of the Constitution of the Republic of Zimbabwe bail is a constitutional right which should only be denied as and when the State can proffer compelling reasons for continued pre-trial detention. In our beloved Zimbabwe this has become quite the issue for quite some time now. The workings of bail in our legal system have since been “distorted” and in as far as politics is concerned bail has been incorporated in what has been termed “Lawfare”(the use of the law in bad faith against political opponents). What is bail though; how does it work; who has the right to bail and what does our law say about bail?

What is Bail?

It is firstly important to note that an accused person in a criminal case is presumed to be innocent until proven guilty. Such person cannot therefore be held in a cell without trial or at least without just cause. So when an accused/suspect is arrested and once he/she has been notified of their rights and charged accordingly he/she has the right to apply for bail while waiting for trial. Bail therefore is when a person enters a written bond, also known as recognisance, committing to appear before the court to answer the charges made against them. In simpler terms it’s a form of security that ensures that the accused person/s will attend when his/her matter is before the courts. The security that may be submitted to the courts may include but is not limited to passport or other travel documents, money, commitment to check in with the police at pre determined times and so forth. An accused can be released on bail without conditions too depending whether the court is satisfied that the accused will attend trial or perhaps the prosecutor may not oppose bail at all.

Bail as a right.

In term of Section 50 (1) (d) of the Constitution of the Republic of Zimbabwe bail is a constitutional right which should only be denied as and when the State can proffer compelling reasons for continued pre-trial detention. Now the Constitution being the supreme law of our land this means that bail is a right that must be enjoyed by all accused people save for when the state provides acceptable and compelling reasons why bail should be denied. In interpreting this provision the courts have held that the provision should be given its grammatical meaning which would thus entail that everyone is entitled to bail and the courts should be more inclined to granting bail than keeping an accused behind bars before such accused is found guilty. 

In S V MUNSAKA HB-55-16 it was held that “It therefore follows that per Constitutional enactment, an arrested person is entitled as of right to be released either unconditionally or on reasonable conditions pending a charge or trial. It is only where it is shown that there are compelling reasons justifying that person’s continued detention that an arrested person can be denied bail. A constitutional provision can never be more clearer.” Looking at the current application of this right in Zimbabwe it is quite clear that it is not being properly or lawfully applied especially for opponents of the regime based in Harare. Political opponents and other accused persons spend months or years behind bars while being denied bail absent just cause and without the benefit of a speedy trial. Some even spend months without charges and without the state furnishing the court with compelling reasons for denying bail as required by law.

In determining what constitutes compelling reasons as to why an accused may be denied bail the High Court has leaned in with a masterful ruling. In S v Khumalo HB-55-16 it was held that “The Criminal hallmark that an accused is presumed innocent till proven guilty is buttressed in the wording of s 117 of the Criminal Procedure and Evidence Act (Chapter 9:07). The notion is that courts should always grant bail pending trial where possible and should lean in favour of the liberty of the accused provided the interests of justice will not be prejudiced. The central question in applications for bail pending trial is whether accused will stand or evade trial.” The lower courts in Zimbabwe when handling cases involving political opposition figures seems to lean more on remanding an accused or imposing unreasonably strict conditions of bail. A clear violation of the Constitution and accompanying legislation. Therefore even though an accused maybe released on bail, bail conditions which are unjustified and unreasonably harsh remain a violation of this fundamental right. For example granting bail while holding an to an accused.s passport without just cause or reasonable inclination that such accused will flee the country would be unjust and un Constitutional.

The position of the law regarding circumstances under which one can be denied bail pending trial are settled as provided for under s 117 (1) and (2) of the Criminal Procedure & Evidence Act (Chapter 9:07). The same has also been highlighted in a plethora of cases which provide that an accused may be denied bail if there is a likelihood that the accused, if released on bail will do or cause any of the following; Endanger the safety of the public or any particular person, or will commit an offence referred to in first schedule or not stand his or her trial or will not appear to receive sentence or attempt to influence or intimidate witnesses, or will conceal or destroy evidence. The lower courts (Magistrates’ Courts or other statutory courts) have however become notorious for denying bail regardless of the absence of compelling reasons as required by law. Reports of prosecutors taking instruction from outside parties and judges being compelled to deny bail for political opponents are rampant in Zimbabwe. The case of Job Sikala lays bare the extent to which the ruling party has through “Lawfare” used the judicial system to stifle the rights of political opponents using denial of bail as a particularly potent toxin that nutralizes opponents that are becoming a “problem”. A catastrophic blend of corruption and intimidation has crippled the lower courts ability to decide such matter without bias, fear or favour.

Whats wrong then? And what is the solution?

The challenge is our captured judiciary. We have a situation whereby the ruling party has captured the judiciary and all other organs of the state. At this stage options are limited on how to challenge this intrusion. Knowledge of our rights is a good starting point though, it is by this knowledge that we can understand what is at stake and what we must do to protect ourselves from abuse. It is furthermore important to stand for and protect judicial officers that make a stand and do the right thing.  In October 2020 a certain Judge Ndewere was struck by “Lawfare shrapnel” as she opted to stand for justice and granted bail against “instruction” from the powers that be. It was, well, another Job Sikala case in which she granted him bail (which he was well entitled to notwithstanding that he has has over 60 cases brought against him in the past and has never not attended a single one of them) regardless of clear pressure from government officials acting in their party’s interests. She was subsequently suspended and removed from the bench. Judge Ndewere’s case revealed a scenario we never could have imagined in our young nation: Judges being intimidated and fired for refusing to follow unlawful or biased influences or orders. A captured judiciary is a disaster for any nation especially in as far as protection of human rights and freedoms are concerned. Through the use of bribes, threats and undue influence, judges, magistrates, prosecutors and other officers of the courts are drawn into crafting decisions that favour the ruling party/regime.

There are numerous cases past and present where citizens are being unlawfully arrested and denied bail. The Constitution clearly sets out the rules by which Bail should be applied. Citizens must be conscientized of their right to bail as provided by the Constitution. It is the first step in defending this very important right. Being unjustly denied freedom is a gross violation of our rights and such violation must be challenged by all citizens. The state cannot and should not interfere with judicial processes and proceedings. No person must be denied bail absent just cause.

#DannyTheGrey