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Mutoko detainees freed: State acknowledges abuse of process
Zimbabwe Lawyers for Human Rights (ZLHR)
March 13, 2009

On 9 March 2009 at least 52 residents of Mutoko who had been arrested on 13 February 2009 and charged with robbery following their attempts to recover property stolen from them by Zanu PF supporters during the 2009 Presidential elections have been removed from remand. Thirty-eight (38) of the accused persons were remanded in custody, since 20 February 2009, after their applications for bail had been denied. ZLHR Public Interest Litigation Lawyers Rangu Nyamurundira and Tawanda Zhuwarara who were representing the accused persons before the Marondera Criminal Magistrates Court on 9 March 2009 applied for refusal of remand. Accused persons were however absent from court as the Marondera Remand Prison authorities had failed to transport them to attend their remand proceedings. Lawyers for the accused persons argued that the:

• facts alleged by the State against accused persons did not constitute the crime of robbery with which accused persons were charged. The state had failed to allege facts to the effect that accused person's conduct in recovering their property amounted to theft, an element essential in the crime of robbery.
• accused persons' right to liberty was being violated without any lawful grounds in that the public prosecutors at Marondera Magistrates Court had on the 18 February 2009, advised the police that the state case against accused persons was not strong enough to amount to a charge of robbery and that accused persons should be released on summons. The prosecutors had also indicated through a letter written to the Director of Public Prosecutor, dated 23 February 2009, that they would not be ready for trial as investigations were ongoing. Further the prosecutors had highlighted the difficulties in securing transportation for the accused persons and witness to attend any court hearing more so of a trial which could be protracted.

In response to the application for refusal of remand the Public Prosecutor, Mr. Katsvairo, conceded to the submission made by defense counsel. The public prosecutor placed it on record that investigating police officers had been advised of the weakness of the state case and that accused persons should be released on summons while they investigated further. The investigating police officers acted contrary to their professional opinion following specific instructions being given them by their superiors, namely the Director of Public Prosecutions, Ms Florence Ziyambi that they should ensure accused persons remained in custody. They had also been directed to invoke section 121 of the Criminal Procedure and Evidence Act (CPEA) upon any accused persons being granted bail, thus ensuring that such accused persons remained in remand prisons irrespective of their deserving bail. The public prosecutor called upon the Magistrates Court to exercise its discretion, as the only the Court, unlike the prosecutor's office, could not be influenced by outside forces.

While ZLHR is glad that the accused persons where finally granted their freedom it strongly expresses concern at the conduct of the State, through the Director of Public Prosecutions and the public prosecutors at Marondera Magistrates Court, in their so blatant and malicious abuse of criminal procedures to deny accused persons their right to liberty and protection of the law. It has indeed become a habit within the office of the Attorney General that section 121 CPEA has been abused to deny accused person bail. In many cases prosecutors claiming to be acting under the instruction of the Attorney General's office invoke section 121 of the CPEA, wherein they indicate their intention to appeal against the granting of bail to accused persons by the court yet seven days later no such appeal is filed. Meanwhile the accused person(s) would have been made to spend seven days in deplorable prison conditions.

This unwarranted and unprofessional behavior by law officers is an indication of malice with which the State and officers in Attorney General's office have unconstitutionally violated accused persons rights to liberty and to protection of the law. Indeed section 18 (1a) of the Constitution of Zimbabwe (as amended under Constitutional Amendment No. 19) provides that:

Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law.

In the Supreme Court case of Smyth v Ushewokunze & Anor 1997 (2) ZLHR 544 (S) it was stated that
"A prosecutor must dedicate himself to the achievement of justice. He must pursue that aim impartially. He must conduct the case against the accused person with due regard to the traditional precepts of candour and absolute fairness. Like Caesars' wife, the prosecutor must be above any trace of suspicion. If he knows of a point in favour of the accused, he must bring it out... The role of the prosecutor excludes any notion of winning or loosing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."

Clearly the Attorney General's office and all law officers under his authority are obliged by the law and the Constitution of Zimbabwe to conduct their office professionally, respecting and upholding the rule of law and principles of human rights. Failure to fulfill such obligations makes them liable for being in contravention of "the supreme law of Zimbabwe", the Constitution of Zimbabwe.

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