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Liberty is a right not privilege
Chris Mhike, The Independent (Zimbabwe)
June 12, 2008

View article on the Zimbabwe Independent website

The shocking move by the Attorney General-s (AG-s) Office to ensure that "those arrested are locked up right up to trial", marks another shameful plunge of the domestic legal system back to the dark days of dissipated repression.

Johannes Tomana, the Deputy Attorney General (Criminal Division) is reported to have said, in relation to suspects arrested on allegations of either committing or inciting political violence, that the AG-s office would "deny bail to all suspects" arrested on charges of either committing or inciting political violence.

He is quoted as having said: "Bail is opposed as a matter of policy. It (the "tough stance") is going to choke the prison population, but what do we do? Do we allow them to continue burning down people-s homes? Jail is not nice. It is not meant to be nice."

Tough indeed! Zimbabwean jails do rank among the toughest in the world, and that makes the policy really tough.

The Herald newspaper of Tuesday June 10 patted the AG-s office on the back through a Comment which claimed that the AG-s decision was "timely". It hails the AG-s office "for the progressive decision to deny bail to all perpetrators and instigators of politically motivated violence".

The newspaper does not even bother to refer to the potential victims of the forthcoming blitz as accused persons. Outrageous remarks are made to the effect that: "Bail is not a right, but a privilege that can be withdrawn if the circumstances are deemed prejudicial to society and/ or justice."

It is this sort of distorted mentality that rulers of the day can, on the basis of their whims and caprice, just strip citizens of fundamental rights, and reclassify the rights as "privileges".

The cartoon in the same newspaper illustrates graphically the depth of the pressmen and women-s miscomprehension of remand and bail issues. The cartoon shows a man from the AG-s office throwing the key to remand prison into what seems to be a sea. It implies that political violence suspects must rot in jail.

The Herald could, maybe, be forgiven for being so naïve and dangerously wrong as to believe that freedom and liberty are privileges, not rights. The men and women running that media house are probably laymen and laywomen without a clue about the provisions of the Constitution of Zimbabwe as far as it relates to fundamental freedoms and about human rights law.

But it is unforgivable for any law officer from the Attorney General-s office, who is supposed to be learned, to mislead the nation into believing that bail is a privilege to be determined upon by a prosecutor. There is nothing "progressive" about denying bail to "all perpetrators and instigators".

If anything, there is everything retrogressive about it.

The "tough jurisprudence" at the AG-s office proceeds from the assumption that the hapless suspects have in fact burnt down people-s homes and that they are guilty of political violence. Under the reasoning of the "tough stance", "suspects" will now cease to be suspects; they will be deemed to be convicts until acquittal, if they get it, at trial.

Now that line of thinking is abhorrent to contemporary legal thinking.

One of the most basic tenets of modern criminal law is that every person is presumed to be innocent until proven guilty.

This presumption of innocence also covers suspects in criminal cases; it also covers suspects who are arrested on charges of either committing or inciting political violence. Closely linked to the presumption of innocence concept is the constitutional principle that each citizen in a democratic society is entitled to his or her liberty.

Article 10 of the Universal Declaration of Human Rights provides that "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him".

Under the system that the AG-s office now wants to bulldoze into our justice system, with the support of The Herald, citizens who are accused of political violence would obviously not be able to enjoy the right, not privilege, to be heard as provided for at international law. Article 3 of the same instrument provides that "everyone has a right to life, liberty and security of person"

It must be noted that liberty is referred to as a "right", not a privilege. Ruling politicians are notorious for saying principles to be found in international legal instruments are foreign and inapplicable to African citizens.

We must therefore refer to the Constitution of Zimbabwe which also carries a bill of rights that is largely similar to the provisions of the Universal Declaration of Rights. Citizens in other African States also enjoy fundamental rights, including the right to be heard and the right to liberty as read with the presumption of innocence, in accordance with their own constitutions.

The rights and concepts outlined herein above were made part and parcel of the domestic legal system way back in 1979 at the codification of the Constitution of Zimbabwe, which we still use today. There have been no constitutional amendments to do away with these fundamental rights.

Section 13 of the Constitution of Zimbabwe provides for the protection of the right to personal liberty. Then Section 18 (3) (a) of the same instrument states that "every person who is charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty".

It is for the reason that the law cherishes these sacred tenets: liberty, fairness, and presumption of innocence that the bail procedure provides for. It does not matter whether a citizen supports Zanu PF, the MDC or any other political party. The sacredness of these principles is universal.

Liberty is so sacred in normal and just societies to the extent that bail may be granted even after conviction. If an accused citizen has been convicted of any offence and she/he intends to appeal against the conviction or the sentence or both, that person will be entitled to apply for the restoration of his or her liberty. The domestic Criminal Procedure and Evidence Act provides that an accused person may at any time and in respect of any offence, apply to a magistrate or a judge, to be admitted to bail immediately.

There is even a provision in the statute that empowers police officers of or above the rank of assistant inspector or any police officer in charge of a police station whatever his rank, to release into liberty, suspects "at a police station and at such time as no judicial officer is available".

There is no provision in the Constitution of Zimbabwe, nor in other statutes, which empowers the Attorney General-s Office to preside over bail applications. It is therefore baffling to hear that the AG-s office has decided to "deny bail to all perpetrators . . . "

The policy threatens the authority of the judiciary and the independence of prosecutors who must approach each case on the basis of its unique facts, realities and considerations.

In determining whether or not a suspect qualifies for placement on remand with bail, the judicial officer or the police officer must consider well-established and considered factors.

If the prosecution does not share the respect that the Constitution gives to liberty as a right, or if the Attorney General-s office believes that it has reasonable grounds to object to bail in any case, the most that could be done would be for that objecting officer to communicate the objection to the sitting magistrate or judge on a case by case basis.

The decision as to whether bail will be granted or not must be taken by the judicial officer, having heard the submissions of both sides.

*Chris Mhike is a legal commentator.

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