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Summary of High Court judgment dismissing the Attorney General's Appeal against Gwanda Magistrates Court's decision to admit MMPZ staffers to bail
The Media Monitoring Project Zimbabwe
January 11, 2012

Following the Gwanda Magistrates Court's decision to grant US$50 bail to MMPZ advocacy officers Fadzai December and Molly Chimhanda, and Public Information Rights Forum committee chairman for Gwanda, Gilbert Mabusa on the December 7th, 2011, the Attorney-General ("AG") immediately invoked section 121 (1) of the Criminal Procedure and Evidence Act signifying his intention to appeal against the decision of the presiding magistrate. In effect, section 121 empowers the AG to veto the granting of bail to any accused person and accords him the power to prevent the release of a person who has been granted bail for seven days within which period he may or may not file an appeal. Subsequent to this, the AG duly filed an appeal in the High Court (Bulawayo) against the magistrate's decision to grant bail. The AG appealed on the following grounds:

a) That the magistrate had erred in not giving sufficient weight to the fact that the accused persons "know the source of the CDs in question. Their release would result in further production and distribution of the material, which is the foundation of all 3 counts".

b) The magistrate erred "by not imposing/attaching any other condition to the bail thereby (sic) the respondents are at liberty to abscond, interfere, with witnesses and commit similar offences".

Fadzai, Molly, and Gilbert stand accused of knowingly failing to give notice of a gathering in terms of section 25 of the Public Order and Security Act (POSA); participating in a gathering with intent to promote public violence, breaches of the peace, or bigotry; and, alternatively, undermining the authority of or insulting the President in terms sections 33 and 37 of Criminal Law (Codification and Reform) Act (the "Criminal Law Code") respectively. Charges against the three arose after they facilitated a civic education workshop aimed at promoting public information rights in Gwanda on November 24th, 2011

After hearing legal arguments in respect of the AG's appeal on December 16th, Justice Mathonsi of the Bulawayo High Court dismissed the appeal and ruled that the magistrate's decision to admit Fadzai, Molly and Gilbert to bail in the amount of US$50 should stand. In coming to this conclusion, the Judge gave the following reasons:

a) The penalty for breaching section 25 of POSA is a fine not exceeding level 12 (US$2,000) or imprisonment for a period not exceeding one year or both. The penalty for breaching section 37 of the Criminal Law Code is a fine not exceeding level 10 (US$700) or imprisonment for five years or both. That of contravening section 33 of the Criminal Law Code is a fine not exceeding level 6 (US$300) or imprisonment for a period not exceeding one year or both. The Judge considered it an obvious and trite legal principle that "where a statute provides for a penalty of a fine and an alternative penalty of imprisonment, the sentencing court must give effect to the fine first. Imprisonment is always reserved for extremely serious breaches or repeat offenders". The judge noted that, in granting bail, the magistrates' court was awake to this legal principle and the penalty likely to be visited upon Fadzai, Molly and Gilbert if convicted. On this score, therefore, Justice Mathonsi concluded that "where a bail applicant is likely to be sentenced to a fine, any risk of abscondment is completely non-existent".

b) The AG's concern that Fadzai, Molly and Gilbert were likely to commit further offenses if granted bail was completely unsubstantiated and not based on any evidence or fact, and the court could not rely on the prosecutor's mere say-so or mere suspicion in this regard.

c) The AG's fear that Fadzai, Molly and Gilbert would interfere with witnesses was found to be without any merit as statements had been recorded from all relevant witnesses and investigations completed by the time Fadzai, Molly and Gilbert were taken to court for initial remand.

The High Court judge concluded that the grounds of appeal were "spectacularly without merit". It was noted that "to the extent that [section 121] interferes with the liberty of a person who has been admitted to bail, that discretion should be exercised judiciously because the Legislature, in its wisdom, entrusted the [Attorney General] with huge powers". Noting further that the grounds of appeal "are legendary by their lack of merit", the court found it "unacceptable for any representative of the Attorney General to shoot up the moment bail is pronounced and invoke section 121 without applying his/her mind to the basis to such invocation". Finally, the High Court made the following observation which is worth quoting in full:

The abuse of section 121 to keep persons in custody who have been granted bail has tended to bring the administration of justice into disrepute. It must be discouraged by all means and the time has come to announce to law officers prosecuting on behalf of the Attorney General that section 121 should be invoked only in those situations where there is merit in the appeal...persons who have been properly granted bail should not be kept in custody merely as a way of punishment. That is an improper exercise in the discretion given to the Attorney General by section 121.

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As a result of Justice Mathonsi's ruling, Fadzai, Molly and Gilbert were released from custody later that day (Friday December 16th). Since then, they appeared again before Gwanda magistrates' court on January 5th and were again remanded out of custody on the same bail conditions originally granted, to January 19th.

Over the Christmas holiday, MMPZ's Coordinator, Andrew Moyse, was also summoned to present himself to the Law and Order department at Gwanda police station "to assist with their inquiries" regarding the same case. He complied with the request and was subsequently charged under section 33 (2) (a) of the Criminal Law Code, which relates to undermining the authority of the President. However, he was not detained and the police advised him they would proceed by way of summons.

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