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Criminal
Procedure and Evidence Amendment Bill [H.B. 7, 2004]
June 04, 2004
[Published
in the Zimbabwe Government Gazette dated 4th June, 2004]
Note: This Bill
has been replaced by Criminal
Procedure and Evidence Amendment Bill, 2006 (H.B. 3, 2006)
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Summary
This Bill proposes to amend the Criminal Procedure and Evidence Act
to facilitate the investigation and prosecution of crimes by the State
that are prejudicing the vital economic interests of Zimbabwe, such
as corruption, the laundering of the proceeds of crime, the externalisation
of foreign currency (whether directly or through transfer pricing),
the smuggling of gold and precious stones and the illegal export of
agricultural products controlled under the Grain Marketing Act. The
Bill will also re-enact (with modifications) the Presidential Powers
(Temporary Measures) (Amendment of Criminal Procedure and Evidence
Act) Regulations (SI 37/04) and the Presidential Powers (Temporary
Measures) (Amendment of Criminal Procedure and Evidence Act) (No.
2) Regulations (SI 41A/04).
Memorandum
There is a prevalence
of crimes prejudicing the vital economic interests of Zimbabwe, such
as corruption, the laundering of the proceeds of crime, the externalisation
of foreign currency (whether directly or through transfer pricing),
the smuggling of gold and precious stones and the illegal export of
agricultural products controlled under the Grain Marketing Act [Chapter
18:14].
The amendments
to the Criminal Procedure and Evidence Act [Chapter 9:07] ("the
principal Act") sought by this Bill are intended to facilitate
the investigation and prosecution of these crimes by the State. They
re-enact (with modifications) the Presidential Powers (Temporary Measures)
(Amendment of Criminal Procedure and Evidence Act) Regulations (SI
37/04) and the Presidential Powers (Temporary Measures) (Amendment
of Criminal Procedure and Evidence Act) (No. 2) Regulations (SI 41A/04).
In more detail, the individual clauses of the Bill provide as follows:
Clause 1
This sets out the Bill's short title.
Clause 2
This clause amends section 32 of the principal Act (which is concerned
with the procedure to be followed after an arrest without warrant)
with the following objects in mind:
Firstly, it extends
the period of pre-trial detention without possibility of bail for
certain serious offences affecting national security and public order
from seven to 28 days, if the court before which an accused is initially
brought within 48 hours after being arrested is satisfied that the
accused was arrested on reasonable suspicion of having committed the
offence in question, or committed the offence in the presence of the
arresting officer or was found by the arresting officer to be attempting
to commit the offence.
Secondly, it provides
for pre-trial detention without possibility of bail for up to 28 days
for certain offences affecting the national economy, if there is produced
to a court before which an accused is initially brought within 48
hours after being arrested, a certificate by the Attorney-General
stating that such detention is necessary due to the seriousness and
difficulty of the case.
Thirdly, it repeals
a redundant provision of section 32 the principal Act.
Clause 3
This clause amends section 34 of the principal Act (which is concerned
with the execution of warrants of arrest) with the same objects in
mind as those specified in the preceding clause in relation to arrests
without warrant.
Clause 4
The amendment sought by this clause is consequential to the amendments
sought by the preceding clauses 2 and 3.
Clause 5
This clause seeks to modify a provision of the principal Act which
prohibited appeals against orders granting or refusing bail made by
judges of the High Court, if the relevant bail application originated
in a magistrate's court. The effect of this amendment will be to permit
such appeals (whether by the Attorney-General or the accused) in relation
to cases involving the security of the State or serious economic crimes.
Clause 6
This clause seeks to re-title a misleadingly labelled provision of
the principal Act empowering courts to return an alternative verdict
where the offence charged is not proved but the facts proved reveal
the commission of some other offence. It also inserts a new section
providing (for the avoidance of doubt) that where a court finds that
part but not all of the facts of an offence charged have been proved,
it must nevertheless convict the accused of that offence if the facts
that are proved disclose all the essential elements of that offence.
Clause 7
This provision clarifies the meaning of paragraph 2 of the First Schedule,
whose interpretation was the subject of recent High Court rulings.
Clause 8
This clause seek to amend the Fifth Schedule to the principal Act,
which forbids a police officer of whatever rank to grant bail to accused
persons for certain specified offences. The purpose of this amendment
is to co-ordinate the contents of this Schedule with those of the
Third Schedule and the new Ninth Schedule.
Clause 9
This clause seeks to add a new Schedule to the principal Act specifying
offences which constitute "serious economic crimes", in
connection with which the provisions on pre-trial detention referred
to in clauses 2 and 3 above may be applicable.
BILL
To amend the Criminal Procedure and Evidence Act [Chapter 8:07]; and
to provide for matters connected therewith or incidental thereto.
ENACTED
by the President and Parliament of Zimbabwe.
1 Title
This Act may be cited as the Criminal Procedure and Evidence Amendment
Act, 2004.
2 Amendment
of section 32 of Cap. 9:07
Section 32 ("Procedure after arrest without warrant") of
the Criminal Procedure and Evidence Act [Chapter 9:07] (hereinafter
called "the principal Act") is amended)—
(a) in
subsection (2)—
(i) by the
deletion of "Subject to subsections (3) and (4)" and the
substitution of "Subject to subsections (3a), (3b) and (3c)";
(ii) by the repeal of the proviso;
(b) by
the insertion after subsection (2) of the following subsections—
"
(3a) Where
the person arrested without warrant is charged with any offence
referred to in paragraph 10 of the Third Schedule and the judge
or magistrate before whom the person is brought in terms of this
section is satisfied that the person was arrested—
(a) while
committing the offence in the presence of a peace officer; or
(b) upon reasonable suspicion of having committed the offence;
or
(c) while attempting to commit the offence, or clearly manifesting
an intention so to do;
the judge or
magistrate shall order that person’s further detention or issue
a warrant for his or her further detention for a period of twenty-eight
days.
(3b) Where the person arrested without warrant is charged
with any offence referred to in the Ninth Schedule and there is
produced to the judge or magistrate before whom the person is brought
in terms of this section a certificate issued by or on behalf of
the Attorney-General stating that, in the Attorney-General’s opinion—
(a) the
offence in question involves significant prejudice or significant
potential prejudice to the economy or other national interest
of Zimbabwe; and
(b) the further detention of the person arrested for a period
of up to twenty-eight days is necessary for any one or more of
the following reasons—
(i) the
complexity of the case; or
(ii) the difficulty of obtaining evidence relating to the
offence in question; or
(iii) the likelihood that the person arrested will conceal
or destroy the evidence relating to the offence in question
or interfere with the investigation of the offence or both;
the judge or
the magistrate shall, if satisfied that the person was arrested—
A. while
committing the offence in the presence of a peace officer; or
B. upon reasonable suspicion of having committed the offence;
or
C. while attempting to commit the offence, or clearly manifesting
an intention so to do;order that person’s detention or issue a
warrant for his or her further detention for a period of twenty-eight
or the lesser period specified in the certificate.
(3c) A
person referred to in subsection (3a) or (3b) shall—
(a) unless
the charge or charges against him or her are earlier withdrawn,
remain in detention for twenty-eight days or the lesser period
specified in a certificate mentioned in subsection (3b), as the
case may be, from the date when an order or warrant for the person’s
further detention was issued in terms of the relevant subsection,
and no court shall admit such person to bail during that period;
(b) pending the outcome of investigations into the charge or
charges against him or her, remain in detention after the lapse
of the period referred to in subparagraph (i), unless a court
admits him or her to bail.";
(c) by the repeal of subsection (4).
3 Amendment
of section 34 of Cap. 9:07 Section 34 ("Execution of warrants")
of the principal Act is amended by the insertion after subsection (3)
of the following subsections—
"(4) If
a person arrested by virtue of a warrant is charged with any offence
referred to in—
(a) paragraph
10 of the Third Schedule, and the judicial officer before whom the
person is brought in terms of this section is satisfied that the
person was arrested upon reasonable suspicion of having committed
the offence, the judicial officer shall order that person’s continued
detention for a period of twenty-eight days; or
(b) the Ninth Schedule and there is produced to the judicial
officer before whom the person is brought in terms of this section
a certificate issued by or on behalf of the Attorney-General in
the same terms as those specified in subsection (3b) of section
thirty-two, the judicial officer shall, if satisfied that
the person was arrested upon reasonable suspicion of having committed
the offence, order that person’s continued detention for a period
of twenty-eight days or the lesser period specified in the Attorney-General’s
certificate.
(5) A
person referred to in subsection (4) shall—
(a) unless
the charge or charges against him or her are earlier withdrawn,
remain in detention for twenty-eight days or the lesser period specified
in a certificate mentioned in paragraph (b) of subsection (4), as
the case may be, from the date when an order for the person’s further
detention was issued in terms of that section, and no court shall
admit such person to bail during that period;
(b) pending the outcome of investigations into the charge or
charges against him or her, remain in detention after the lapse
of the period referred to in paragraph (a), unless a court admits
him or her to bail.".
4 Amendment
of section 116 of Cap. 9:07
Section 116 ("Power to admit to bail") of the principal Act
is amended in subsection (1) by the deletion of "Subject to this
section" and the substitution of "Subject to this section
and sections thirty-two and thirty-four,".
5 Amendment
of section 121 of Cap. 9:07
Section 121 ("Appeals against decisions regarding bail")
of the principal Act is amended by the repeal of subsection (8) and
the substitution of—
"(8) There
shall be no appeal to a judge of the Supreme Court from a decision
or order of a judge of the High Court in terms of paragraph (b) of
subsection (2), unless the decision or order relates to the admission
or refusal of admission to bail of a person charged with any offence
referred to in paragraph 10 of the Third or the Ninth Schedule, in
which event subsections (3) to (7) shall apply to such appeal.".
6 New sections
substituted for section 223 of Cap. 9:07
Section 223 of the principal Act is repealed and the following sections
are substituted—
"223 Conviction
for other crime than that charged
Where a person
is charged with an offence the essential elements of which include
the essential elements of some other offence, he or she may be
found guilty of such other offence, if such are the facts proved
and if it is not proved that he or she committed the offence charged.
223A Conviction
for part of crime charged For
the avoidance of doubt it is declared that where a court finds that
part but not all of the facts of an offence charged have been proved,
it shall nevertheless convict the accused of that offence if the
facts that are proved disclose all the essential elements of that
offence.".
7 Amendment
of First Schedule to Cap. 9:07
(1) The First Schedule ("Specified Offences in Relation
to Powers of Arrest") of the principal Act is amended by the
repeal of paragraph 2 and the substitution of—
"2. Any
offence in terms of any enactment in respect of which a punishment
of a period of imprisonment exceeding six months is provided and may
be imposed without the option of a fine.".
(2) The
amendment made by subsection (1) is for the sole purpose of clarifying
the meaning of the provision amended and does not affect the validity
of anything done in connection with such provision before the date of
commencement of the Criminal Procedure and Evidence Amendment Act, 2004.".
8 Amendment
of Fifth Schedule to Cap. 9:07
The Fifth Schedule ("Offences in Connection with Which Bail May
not be Granted in terms of Section 132 (1)") of the principal
Act is amended by the repeal of paragraphs 10, 11 and 12 and the substitution
of—
"10. Contravening
section 5, 6, 7, 8, 9, 10 or 11 of the Public Order and Security Act
[Chapter 11:17].";
11. Any conspiracy, incitement or attempt to commit an offence
specified in paragraphs 1 to 10.
12. Any offence referred to in the Ninth Schedule in respect of
which the Attorney-General has issued a certificate referred to in
subsection (3b) of section thirty-two or paragraph (a) of subsection
(4) of section thirty-four.".
9 New Schedule
added to Cap. 9:07
The principal Act is amended by the insertion after the Eighth Schedule
of the following Schedule—
"Ninth
Schedule (Section 32)
Offences
involving Corruption, Organised Crime or Harm to the National Economy
- Contravening the Prevention of Corruption Act [Chapter 9:16].
- Contravening section 63 ("Money-laundering") of the
Serious Offences (Confiscation of Profits) Act [Chapter 9:17].
- The sale, removal or disposal outside Zimbabwe of any controlled
product in contravention of the Grain Marketing Act [Chapter
18:14].
- Any offence under any enactment relating to the unlawful possession
of, or dealing in, precious metals or precious stones.
- Contravening section 42 ("Offences relating to banknotes")
of the Reserve Bank Act [Chapter 22:15] or committing any
offence relating to the coinage.
- Contravening subparagraph (i) of paragraph (a) of subsection (1)
of section 5 of the Exchange Control Act [Chapter 22:05]
as read with—
- subsection (1) of section 4 of the Exchange Control Regulations,
1996, published in Statutory Instrument 109 of 1996 (in this subparagraph
and paragraph 7 called "the Exchange Control Regulations"),
by dealing in any foreign currency in contravention of paragraph
(a) or (b) of that section of the Regulations without the permission
of an exchange control authority;
- subsection (1) of section 10 of the Exchange Control Regulations,
by unlawfully making any payment, placing any money or accepting
any payment in contravention of paragraph (a), (b), (c) or (d)
of that section of the Regulations;
- paragraph (a) or (b) of subsection (1) of section 11 of the
Exchange Control Regulations, by unlawfully making any payment
outside Zimbabwe or incurring an obligation to make any payment
outside Zimbabwe;
- paragraph (b). (e) or (f) of subsection (1) of section 20 of
the Exchange Control Regulations, by unlawfully exporting any
foreign currency, gold, silver or platinum, or any article manufactured
from or containing gold, silver or platinum, or any precious or
semiprecious stone or pearl from Zimbabwe;
- subsection (2) of section 21 of the Exchange Control Regulations,
by unlawfully exporting any goods from Zimbabwe in contravention
of that provision of the Regulations.
- Contravening paragraph (b) of subsection (1) of section 5 of the
Exchange Control Act [Chapter 22:05] by making any false
statement or producing any false document in connection with a contravention
of subsection (2) of section 21 of the Exchange Control Regulations;
- Theft of a motor vehicle as defined in section 2 of the Road Traffic
Act [Chapter 13:11].
- Theft or forgery of—
(a) a document issued to a person in terms of subsection (1)
or (2) of section 7 of the National Registration Act [Chapter
10:17], or a passport or drivers licence issued by or on behalf
of the Government of Zimbabwe; or (b) any visitors entry certificate
or other certificate or permit issued to a person in terms of the
Immigration Act [Chapter 4:02], or in terms of any enactment
relating to refugees; or (c) any passport, identity document
or drivers licence issued by a foreign government; or (d) a
vehicle registration plate; or (e) any documentation relating
to the registration or insurance of a motor vehicle.
- A conspiracy, incitement or attempt to commit any offence referred
to in paragraphs 1 to 9.".
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