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State abuses section 121 for the benefit of Zanu-PF
MDC
Youth Assembly
May
07, 2013
The Attorney
General’s offices have found a lovely toy in Section 121 of
the Criminal
Procedure and Evidence Act. Zanu-PF oriented prosecutors have
been abusing this draconian act to keep behind bars those perceived
as Zanu-PF enemies.
A Bindura prosecutor
Munyaradzi Mataranyika yesterday unexpectedly and unnecessarily
invoked section 121 to block a US$100 bail that was granted by magistrate
Elisha Singano.
This unjust
piece of legislation has seen unprofessional prosecutors playing
ball to Zanu-PF’s demands. The section has been abused to
keep mostly MDC members and civic society activists in jail when
they have been granted bail.
The section
empowers a prosecutor to override a magistrate’s judgment
on bail. It has been heavily abused by prosecutors only in cases
that are politically motivated. The prosecutors at times come to
the courts unprepared for the delivery of justice but to seek means
of punishing those who are perceived as enemies of Zanu-PF.
Prosecutors
are developing an evil tendency of invoking section 121 every time
a known MDC leader or activist is granted bail. The section therefore
renders the judges and magistrates’ rulings academic as the
accused effectively remain behind bars.
The section
removes the right of the accused person to freedom. The State is
now persecuting through prosecution. Even when an individual is
clearly not guilty and with a clear alibi as in the case of leader
Solomon Madzore, the State can invoke the section to deny one’s
freedom.
Section 121(3)
which reads: A decision by a judge or magistrate to admit a person
to bail shall be suspended if, immediately after the decision, the
judge or magistrate is notified that the Attorney-General or his
representative wishes to appeal against the decision, and the decision
shall thereupon be suspended and the person shall remain in custody
until -
(a) if the
Attorney-General or his representative does not appeal in terms
of subsection (1) -
(i) he notifies
the judge or magistrate that he has decided not to pursue the appeal;
or
(ii) the expiry
of seven days; whichever is the sooner; or
(b) if the
Attorney-General or his representative appeals in terms of subsection
(1), the appeal is determined
The section
has clearly removed the onus to determine the freedom of the accused
person from the presiding magistrate based on the submission of
the prosecution and defence counsel. What a Bindura prosecutor Munyaradzi
Matarenyika did yesterday to leader Solomon Madzore was unnecessary
and unthinkable under a professional judicial system. This will
be a thing of the past in a new dispensation under the leadership
of President Morgan Tsvangirai.
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