BY DR MASIMBA MAVAZA | (WAS JOB SIKHALA’s ARREST POLITICALLY MOTIVATED. )
The American government and others in Europe have accused Zimbabwe for refusing Zengeza MP Job Sikhala and his colleague Godfrey Sithole bail. Every time when it comes to the opposition, the European and American governments accuse Zimbabwe. It is true that Zengeza West MP Job Sikhala and his Chitungwiza North counterpart Sithole were denied bail following their court appearance on charges of incitement to commit public violence.
Harare magistrate Gibson Mandaza denied the two opposition lawmakers their freedom declaring they were a “threat to public security and likely to reoffend if released on bail”. They then lodged an appeal to the high Court. Citizens Coalition for Change (CCC) national spokesperson Fadzayi Mahere branded Mandaza’s ruling an unconstitutional ploy by Zanu PF to persecute and silence the opposition. This is the narrative which has been taken by the European and American governments.
But the truth of the matter is that they have filed a bail appeal through their lawyers, Alec Muchadehama and Jeremiah Bamu. This was again denied by the high court.
In her ruling the judge said courts attach conditions when granting bail for a purpose.
She said there was no misdirection on the lower court’s findings considering background circumstances, citing that Sikhala voluntarily volunteered information that he was arrested for the similar offence several times. She said this shows “Sikhala has a heightened propensity to re-offend” and his grounds of appeal have no merit.”
Prosecutors accused them of urging the public to avenge the death of Ali but they deny the charges.
Deputy chief magistrate Gibson Mandaza also said they two were men of means and acted in common purpose to mobilise people who attacked the homes of Zanu PF members in Nyatsime area to avenge Ali’s death.
“A person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.” But what exactly is bail.
Bail is a way of allowing a person who has been remanded for trial at a later date to remain at liberty until his trial. To grant bail means to allow a person to enter into a contract or undertaking (called “a recognisance”) whereby he remains at liberty in consideration for his paying or guaranteeing to pay a sum of money if he fails to appear in court at the date, time and place appointed for his trial or further remand. Once bail is granted, the accused person should not be deprived of his liberty until his bail bond is terminated, unless he breaches any conditions under which bail was granted, and the State has an implied obligation to allow him to remain at liberty so long as he abides by those conditions.
The need for a mechanism such as bail must be understood in the light of the following principles:
1. Regardless of one’s political affiliation one has a right to be released, unconditionally or on reasonable conditions, unless there are compelling reasons justifying his continued detention.
2. It is the breath of the law that a person is presumed to be innocent until he has been convicted by a court of law. While his case is pending the court has to strike a balance between the liberty of the accused and the need to avoid continuation of the commission of crimes. He should not, therefore, A balance must be struck between these two interests.
3. It is not in the interests of justice for bail to be granted to a person who will not stand his trial or will abuse his liberty by, intimidating the witnesses against him or commit the same crime before boasting about doing so.
4. The courts always consider the constitutional rights of the accused person and his or her dependants.Where the accused is the primary care-giver of a child, the best interests of the child must be considered together with all the other circumstances.
Bail is non-penal in character, and neither the amount of bail nor the refusal of bail may be influenced by a desire to punish the accused or to deter other offenders. Nor should the grant or refusal of bail be used as an inducement to get the accused to make a statement to the police.
Although the grant of bail in any particular case is pre-eminently a matter for the judicial officer, he or she usually acts on information given by the prosecutor, so the prosecutor has a duty to place before the court any information he or she has relevant to the grant or refusal of bail. Refusal of bail does not mean that a conviction will follow.
Now the CCC and it’s handlers are deliberating misleading the people by politicising the crimes of Job and Sithole.
The fact that one is a politician does not mean that the crimes he commits are political. It is therefore infuriating that CCC deliberately misinform people about the real reasons for the arrest of Job Sikhala.
Job Sikhala being a lawyer the court expects him to know the difference between politics and law. Zimbabwe has a process it follows in granting bail. For the sake of the Americans and Europeans who are ignorant of the Zimbabwean bail procedure I will tabulate the procedure.
Application for Bail
A person has a right to ask to be granted bail so bail is not an absolute right. It has to been applied for.
An accused person who appears before a judge or magistrate before trial (for example, when he appears on remand) may apply verbally to be admitted to bail immediately; alternatively he may make a written application in the form prescribed in rules of court. Every such application must be dealt with promptly.
The Prosecutor-General or the local public prosecutor must be given reasonable notice of oral bail applications — though in practice applications are made by accused persons on their first remand without giving such notice.
In a bail application, the judge or magistrate can receive evidence on oath or by affidavit, and hearsay evidence is admissible. The prosecutor indicates his attitude to the grant or refusal of bail, and the judge or magistrate decides the question on the basis of what he has been told by the accused and the prosecutor. Bail proceedings, in fact, follow the inquisitorial rather than the adversarial model of criminal procedure. Both sides can be required to adduce evidence. If the accused gives evidence, however, the court must inform him that his evidence will be admissible and may be used against him at his trial.
An accused person “is compelled to inform the court” whether he has any previous convictions and whether he is facing other charges and, if he is, whether he has been granted bail on those charges. It is not clear if this means that he must volunteer the information or need disclose it only if asked. If he wilfully fails or refuses to give this information, or gives false information on these matters, he commits a crime.
If an application for bail is refused by a judge or magistrate, a further application cannot be made unless it is based on facts that were not placed before the judge or magistrate who first determined the application and which arose or were discovered after he made the decision. If no new facts arise, the only recourse the accused has is to appeal. It should be noted, however, that the passage of time can itself constitute a “new fact”: in other words, the fact that a long time has elapsed since an application for bail was made and refused can be placed before the court as a justification for a fresh application.What those accusing Zimbabwe for victimising Job Sikhala do not understand is the fact that the refusal or granting of bail is a vitally important part of the criminal process. Initial remand is an important step in a citizen’s loss of liberty. After arrest without warrant, it is the first time that his case is presented to a neutral body for arbitration of the issue whether or not, on the basis of mere suspicion, the citizen must lose his freedom. If he loses his freedom at that stage, before his guilt is proved, he may face total ruin. He may lose his job, or other means of his livelihood. He could lose his home too if he is a lodger or a mortgagee as he falls into arrears. This could drive his family into destitution and he is forced to rely on State support for livelihood whilst in custody. The consequences are just too ghastly to contemplate for both the rich and the poor. Magistrates are therefore to take the greatest care when approaching the question whether to deny or grant bail.”
The following principles govern were the principles used to deny or grant bail.
Section 50(1)(d) of the Constitution states that a person who has been arrested:
“must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.”
According to section 117(1) of the Criminal Procedure and Evidence Act, every accused person has a right to bail, subject to the interests of justice:
“[A] person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.”
The constitutional provision protects liberty more stringently: an accused person must be released unless there are “compelling reasons” for keeping him in detention; the Criminal Procedure and Evidence Act on the other hand says that he may be detained if it is “in the interests of justice” to do so. Section 115C of the Act seeks to align the Act with the Constitution by saying, in effect, that the grounds listed in section 117 as justifying continued detention in the interests of justice must be regarded as “compelling reasons”. So the Job Sikhala issue depended solely on principles. It is impossible to define the term compelling circumstances comprehensively because what is compelling will vary according to the personal circumstances of each suspect and the facts of his or her case. There are four reasons which normally justify continued detention:
a)that the suspect is likely to abscond
b) that the suspect is likely to interfere with the evidence, e.g. by intimidating witnesses
c) that the suspect is likely to commit further crimes if released.
d) And that the suspect is in breach of another bail condition.
Whether those reasons, individually or in combination, will be compelling depends on the facts and circumstances of each case, as already pointed out. The more likely the suspect is to do any of these things, the more compelling the reason for keeping him in custody. In Job’s case giving him bail would have been an insult to our justice system.
Section 117 of the Criminal Procedure and Evidence Act
Section 117 of the Act seems to be based loosely on the equivalent provision of the South African Criminal Procedure Act, 1977, which in turn is based on section 35(1)(f) of that country’s constitution. Section 35(1)(f) states that everyone who is arrested has the right to be released from detention “if the interests of justice permit”. Our Constitution is different, as already noted. Arrested persons in Zimbabwe have a greater constitutional right to bail than is granted them in South Africa; so section 117 does not go far enough in guaranteeing to arrested persons their right to bail. To that extent, therefore, it is unconstitutional. Merely saying, as section 115C does, that the reasons listed in section 117 amount to compelling reasons does not render section 117 constitutional.
Be that as it may, section 117 of the Criminal Procedure and Evidence Act elaborates on the reasons for continued detention listed above, and sets out in detail the considerations to be taken into account by a judge or magistrate when deciding whether to grant or refuse bail:
In the Job Sikhala case It was in the interests of justice to refuse him bail. It was established that if the accused is granted bail he is likely:to endanger public safety or the safety of an individual person;to “undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system” It was also in the interests of justice to refuse Job Sikhala bail as“in exceptional circumstances” it is likely that the release of the accused will disturb public order or undermine public peace or security.The court in Job’s case balance the interests of justice against the right of the accused to personal freedom.
Generally, the onus of showing that bail should not be granted rests with the prosecution, where bail is sought before the accused person has been found guilty. As Mathonsi J said in S v Munsaka 2016 (1) ZLR 427 (H), the onus of proving compelling reasons for not granting bail lies on the State. The degree of proof required is a balance of probabilities. Under section 115C of the Criminal Procedure and Evidence Act
The presumption of innocence operates fully in bail applications made before the accused has been found guilty, and so the court is expected and required to lean in favour of the liberty of the accused. In other words, if the State opposes bail it must prove that justice will be served by denying bail. So in Job Sikhala’s case the state proved beyond any reasonable doubt.
Once, however, the prosecution has made credible allegations against the accused which would provide grounds for refusing bail, the onus shifts to the accused person, who must show on a balance of probabilities that his admission to bail would not prejudice the interests of justice. When Job was given the chance to offload the burden he boasted that he has been committing the same offence and got arrested for the same offence for over forty seven times. This assisted the court to quickly without delay deny bail.
So it is a shame that CCC which is full of lawyers fail to see that Job as a lawyer is indeed a liability to his liberty and to his own party. His incarceration is not political but seriously criminal.