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Attack on judiciary unjustified
January 05, 2007
IN recent weeks, the
judiciary has been subjected to intense verbal and press-based attacks.
That aggression is particularly lamentable as it emanates from men
who should know better.
The culprits, high-ranking
government officials and other senior authorities, ought to be familiar
with the basics as well as the intricacies of the substantive and
procedural law relating to the treatment of accused persons.
But, alas, distinguished
officials have stampeded for space in the news columns and for air-time
on the small screen to lash out at the bench.
The furore follows a
most commendable recent visit by Judge President Rita Makarau to
the remand section of Harare Central Prison.
It is common knowledge
to all those who care that standards in Zimbabwe-s prisons
have deteriorated to horrendous levels since independence. The good
judge must have seen for herself the gravity of the situation during
Prisoners complain of
hunger, forced to survive on one very poor meal a day. Just a small
portion of sadza and a few leaves of boiled cabbage, without tomatoes
nor cooking oil.
The horror starts in
the holding cells at the police station where the accused is subjected
to sub-human treatment, forced to remove shoes and under-clothes,
including panties, even for menstruating women.
A tiny cell designed
for four or less persons holding more than 30 people at a time,
with lavatory facilities in the same room, and flushed once a day
from a point located outside the cell.
These are but a few glimpses,
not an exhaustive description of the conditions that suspects are
subjected to at police stations, and at remand prison. But suspects
are not convicts. Should the accused-s bail application fail,
the nightmare continues at remand prison.
at most prisons in Zimbabwe, including Harare Central Prison-s
remand section, or incarceration at holding cells at police stations,
has become a form of torture.
The honourable judge
discovered during the visit that certain inmates had been locked
up in remand prison for as long as nine years, without trial or
sentence. Remand prisoners are in the main persons who have not
been tried and therefore who are not, at that stage technically,
and sometimes in fact, guilty.
Even in the case of convicts,
the diabolic treatment of citizens in police cells and in prison
is totally unacceptable in a democratic society.
Under these circumstances,
therefore, one of the most sensible outcomes of Justice Makarau-s
prison visit was the release of some remand prisoners. The Herald
reports, without giving a specific figure, that "more than
100" were released.
They were released, not
on judicial pardon (as is sometimes done by the president through
the presidential pardon system). They were admitted to bail by competent
judicial authorities, who presided over the prisoners- applications.
The judges considered the circumstances of the applicants, and submissions
by prosecutors (that is representatives of the state).
Also under consideration
would have been the Judge President-s post-visit observations.
Due legal processes were definitely followed. Prison officials were
part of the tour and pre-release deliberations.
Justice Makarau could
not, as has been suggested in the press, issue a blanket directive
ordering the release of "more than 100 criminals". Release
becomes possible only after the sort of applications that were made
at the High Court.
There are many considerations
that guide magistrates and judges as they preside over bail applications.
But the starting point in bail proceedings, for most proficient
judicial officers, is the constitution.
Defective as the Constitution
of Zimbabwe is, at least it still carries a Declaration of Rights.
The declaration is not adequately expansive, but it all the same
provides a degree of valuable and fundamental protection to citizens.
"No person shall
be deprived of his personal liberty," says the law. That provision
is qualified in the same constitution when it is stated that the
law may condone deprivation of liberty "upon reasonable suspicion
of his having committed, or being about to commit, a criminal offence".
Related to the citizen-s
entitlement to liberty is the cardinal principle known as the presumption
of innocence. This is a most basic and well-established tenet not
just at home but the world over, stipulating that every person shall
be presumed innocent until proven guilty.
This tenet is critical
in preserving the credibility of any legal system, as well as the
credibility of the prison system. That presumption should be applied
to any accused person, including ex-convicts because each case has
to be treated on its own merits.
In the case of preserving
the credibility of the legal system, if suspects are wrongfully
incarcerated, no amount of money or other material award would compensate
their loss of liberty.
Very little, if anything,
would restore the confidence of the victims, or society at large,
in the system where it is possible that an innocent person could
be locked up.
It is better for society
to suffer the menace inflicted by a criminal who was wrongfully
released than for an innocent person to be wrongfully imprisoned,
especially under the conditions of local prisons or police cells.
In civilised society,
wrongful incarceration is a very expensive mistake because the state
would have to pay out huge amounts of money in compensation. Not
so in Zimbabwe.
But the motivation to
spare citizens from wrongful arrest and imprisonment should basically
be to uphold the integrity of the legal system more than the fear
of financial losses.
In the case of the prison
system, the integrity of the Zimbabwe Prisons Service would be irredeemably
undermined if citizens were to be denied bail purely on the grounds
that they are "notorious criminals", or that they have
been convicted before.
Imprisonment upon conviction
is not just punitive. There should also be a reformative objective.
A sound prison system should be able to reform a convict so that
upon his or her release, they will be transformed, shying away from
Many convicts do reform.
Often times, out of laziness and out of prejudices, police officers
target ex-convicts as the prime or first suspects. It sometimes
turns out that these easy targets are in fact innocent.
The presumption of innocence
and the right to personal liberty should therefore be applied to
every citizen, and extended even to persons with poor criminal records.
In the ongoing assault
on the judiciary, two of the most prominent protagonists who seem
to refuse to appreciate the significance of the right to personal
liberty, and the presumption of innocence, include Home Affairs
minister Kembo Mohadi and Police Commissioner Augustine Chihuri.
The Herald of December
4 2006 screamed in a front-page story that Mohadi had hit out at
the judiciary over the release of remand prisoners. The accused
were referred to as "criminals".
The minister is reported
to have said: "I am disturbed by the vicious cycle in which
notorious armed robbers are arrested by police, placed on remand
and granted bail to rejoin the communities they terrorise."
He went on to accuse
the judiciary of "complicity in the granting of bail to such
Chihuri had been quoted
a week earlier as having commented about the "criminals".
He took a "swipe at the judiciary" over the same issue.
In Zimbabwe, the rule
in application in most cases is: "guilty until proven innocent".
The commissioner said: "I don-t understand it anymore.
These are cross-border criminals who operate in syndicates and deserve
There has been no scientific
substantiation to the suggestions that "more than 100 'criminals-
were released", or that the recent prison visit by the Judge
President is directly linked to an upsurge in crime levels. It is
all speculation and suspicion.
A reporter wrote in the
Herald of November 16 2006 that "in a development that could
be linked to the recent release of more than 100 suspected carjackers,
robbers and burglars from Harare Central Prison . . . the crime
rate in the city of Harare has risen sharply".
The prevailing economic
environment, high unemployment and poor national and local governance
all make a more probable explanation to the higher crime levels.
When one considers the
inefficiency of a system that allows people to rot in prison for
nine or more years, in light of the principles of liberty to the
citizen and the presumption of innocence, it becomes quite clear
that the latest attack on the judiciary is unjustified.
a lawyer practising in Harare.
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