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Eroding rights to liberty & law protection: AG's office denying bail as matter of policy
Zimbabwe Lawyers for Human Rights (ZLHR)
June 11, 2008

Zimbabwe Lawyers for Human Rights (ZLHR) has noted with alarm the expressed intention of the Attorney-General (AG) to "deny bail to all suspects arrested on charges of either committing or inciting political violence". In a front-page story headlined "AG's Office Gets Tough: No bail for political violence cases" reported in The Herald on Monday 9 June 2008, as well as in repeated television interviews on the state-run broadcaster, the Deputy AG (Criminal Division), Mr. Johannes Tomana, was quoted saying: "We have made it a point that those arrested are locked up right to trial. Bail is opposed as a matter of policy".

The statement by Mr. Tomana expressing the intention of the AG's Office to "deny bail" to accused persons as a matter of policy is regrettable and unfortunate, as it clearly confuses the role of the AG's office with that of the final arbiter, the judiciary.

In terms of the Constitution of Zimbabwe, all accused persons have a fundamental right to be presumed innocent until proven guilty by a court of law. They also have the right to protection of the law and the right to their liberty as guaranteed in sections 18 and 11, respectively. Bail is an entitlement that is provided to accused persons to ensure that, from the time of their arrest to the finalization of their trial, their right to liberty is not unreasonably and unnecessarily violated. Thus an accused person has a right to apply for bail before the criminal court, which bail must, in the interests of justice, be granted where an accused person has convinced the court that:

• s/he is of fixed and known abode and is not likely to abscond from attending trial if set free on bail;
• s/he will not interfere with the witnesses or evidence while on bail; and
• s/he will not commit further offences while on bail.

Further, when bail is applied for, the State as represented by the AG's office, cannot simply oppose the granting of such bail without providing the court with substantive and credible reason/s (supported by evidence) for such opposition. It would have to convince the court that there is a material likelihood that the accused may flee from justice if released on bail, interfere with witnesses, or commit further offences. It is then solely within the mandate and function of the court and not the AG's office to decide, on the basis of the evidence before it, whether bail should be granted. These are elementary tenets of criminal procedure and constitutional law.

The State, as represented by the AG's office, now seeks to unilaterally remove in totality the right to even make an application for bail by publicizing its intention to make it mandatory that no bail is granted at all to those arrested on the mere suspicion of "political violence". To simply "deny bail as a matter of policy" because the crimes for which accused is charged amount to political violence is clearly unconstitutional.

All and any criminal acts of violence, whether politically motivated or otherwise, and whoever the perpetrator, are deplorable and must be discouraged. The perpetrators, where known, must be prosecuted impartially and within a reasonable time. This discourages repetition of the offences, provides redress to victims, whilst punishment of perpetrators counters the unacceptable impunity which is so rife in our society. However, as a civilized nation which purports to adhere to the rule of law and the principle of separation of powers, there must, of necessity, be compliance with our Constitution and accepted international human rights norms and standards which act as safeguards for all people of Zimbabwe where they, as accused persons, face the might of the State and its resources.

It is therefore unacceptable at law and in practice for the State, through the AG's office, to override the function of the judiciary, by issuing widely publicized policy decisions to deny bail without just and reasonable cause. This usurps the functions of the judiciary, and places unacceptable executive pressure on an independent arm of government.

With the reality that the wheels of criminal justice in Zimbabwe's courts turn slowly, such a process would mean that accused persons, constitutionally presumed innocent, would have to spend long periods of time in remand prison before even being heard. Indeed Zimbabwe's remand prisons are on record for keeping people on remand for unacceptably long periods of time, from months to as much as nine years. This has been highlighted and condemned by the Judge President of the High Court of Zimbabwe, Rita Makarau.

The effect of such denials of bail was witnessed following the 29 March 2008 elections when Zimbabwe Electoral Commission (ZEC) officials who had been charged with fraud and other offences were denied bail in areas such as Masvingo, Zaka and Buhera, yet to date their trials have not taken off due to the state still gathering and preparing its witnesses and evidence. The reason given by the public prosecutors for denying the ZEC officials bail was not one of genuine fear that the accused would breach bail conditions but simply that they had received instruction to deny bail from "higher powers".

This policy change by the AGs office to deny bail without just cause comes at a time when many are preparing to cast their vote in the presidential election run-off set for 27 June 2008. This means that those who are arrested now and denied bail may be kept in remand prisons for weeks or months, thereby resulting in them failing to cast their vote from within the prison cells. This unprecedented policy by the AG's office thus stands to deny many Zimbabweans who may in fact be innocent of any criminal offence their right to participate in the governance of their country through voting or campaigning for their political party.

ZLHR is further saddened that the Deputy AG's statement expresses insensitivity of the pitiful state of our prisons wherein prisoners, including the innocent and still to be proven guilty, are living in inhuman and degrading conditions. The Deputy Attorney General in fact admits to the overcrowding, stating that the condemning of accused persons to remand without any hope of bail "is going to choke the prison population . . . .Jail is not nice. It is not meant to be nice". Zimbabwe's prisons are indeed already battling to provide prisoners with adequate clothing, food and health care.

The attitude of officials in the Ministry of Justice, Legal & Parliamentary Affairs further exhibits the inability to accept state obligations and comply with constitutional provisions. Instead of addressing the conditions of prisons, Mr. Chinamasa expressed his intention, as reported in The Herald on 10 June 2008, to propose an amnesty "in order to create space for those convicted of political violence".

ZLHR calls upon the Attorney General's office to respect the right to liberty and protection of the law, and recognize and accept that every accused person is entitled to apply for bail without such bail being denied without just cause. In line with this, there should be an immediate retraction by the AG's office of public statements made, and a public reaffirmation that it is the constitutional duty of the courts, and not the AG's office, to decide whether an accused person is a fit candidate for bail. ZLHR further calls upon the courts not to be intimidated by such public pronouncements and executive pressure, and to continue to safeguard and protect the right to liberty of accused persons by granting them bail where there is just cause to do so.

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