Electronic copy available at: http://ssrn.com/abstract=2368221

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Changing the game: Striking down section 121 of Zimbabwe’s Criminal

Procedure and Evidence Act

‘Power is always subject to abuse - sometimes subtle, other times, as in the criminal

process, open and ugly.’ Herbert L. Packer The Limits of the Criminal Sanction

(1968) 116.

James Tsabora1 Ignatious Nzero2

1. Introduction

The dawn of a new constitutional framework instils hope and expectation that

outdated and incompatible laws will either be repealed or be aligned with the new

constitutional order. In early 2013, Zimbabwe voted for a new Constitution which was

eventually passed as Constitution of Zimbabwe Amendment (No. 20) Act, 2013. The

new Constitution has progressive provisions and there is hope that the courts will

generously interpret these provisions, thus promoting the constitutionally entrenched

rights and freedoms. One area where there is hope relates to the right to liberty,

particularly in view of the extensive limitations that have existed against this right in

recent years. This paper focuses on this right to liberty, and most importantly on how

the bail procedure under section 121 of the Criminal Procedure and Evidence Act

has impacted against the full enjoyment of this right in Zimbabwe.

Section 121 of Zimbabwe’s Criminal Procedure and Evidence Act (CPE) is an attack

on the rights to liberty and fair trial deeply entrenched in Zimbabwe’s constitutional

and criminal justice system. The esteemed value of these two rights is

acknowledged in most constitutions of the world and thus any debates about them

no longer stir interesting controversies. It is therefore not the gradual erosion of

these rights by section 121 of the CPE that causes discomfort; the implications of the

1 (PhD Law), Rhodes University 2 LLB (University of Fort Hare, South Africa), LLM (University of KwaZulu-Natal, South Africa), Doctoral Candidate, Faculty of Law (University of Pretoria, South Africa).

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section on Zimbabwe’s constitutional system create deep anxiety and cause for

concern, and for this reason, deserve critical analysis.3

This article provides a critical analysis of section 121 of Zimbabwe’s Criminal

Procedure and Evidence Act. In particular, it examines the nature of the statutory

provisions relating to bail proceedings as guaranteed in Zimbabwe’s constitutional

framework4 and given statutory effect by the Criminal Procedure and Evidence Act. It

will be argued that the section is not only difficult to justify in a society which purports

to be founded on a constitutional system that respects fundamental rights and

freedoms, but most importantly, in light of the new constitution, no longer has a place

in Zimbabwe’s constitutional system.

2. Section 121 of the Criminal Procedure Act

Section 121 of the Criminal Procedure and Evidence Act regulates matters relating

to appeals against a bail decision made by a lower court. The section 121 thus

recognises the accused right to apply for bail in any criminal proceedings against

him. It further acknowledges that such proceedings are to be conducted in court

before either a judge or magistrate who is empowered to either grant the application

or reject it. Any party to bail proceedings, who is aggrieved by a decision made by

the lower court regarding bail or any aspect thereof, is entitled to appeal such

decision to a superior court.5

Subsection (3) provides that a magistrate or judge’s decision to admit an accused

person to bail shall be suspended ‘if, immediately after the decision, the magistrate

or judge is notified that the Attorney General or his representative wishes to appeal

against the decision.’ A decision regarding bail is thus suspended by a mere notice

3 See ‘Prosecutors abuse court processes: magistrates’ The Zimbabwean Herald 10 September 2011. Practicing attorneys regard the section as frustrating their clients’ fundamental rights. See

http://zimbabwereporter.com/humanrights/2674.html accessed on 20 November 2011). The executive defends

the provision, arguing that it aids the prosecution ‘in getting redress from superior courts in instances it felt bail

would have been improperly granted.’ See ‘Nothing amiss with section 121.’ The Zimbabwean Herald 11 May

2011. Finally the prosecution argues that the section is only invoked section in those ‘cases where we feel

magistrates would have failed to appreciate the law and the facts as presented, and at law we cannot allow

illegalities to continue.’ See ‘Prosecutors abuse court processes: magistrates’. 4 The old Lancaster Constitution of Zimbabwe, 1980 as amended ( herein ‘the Constitution’).Any reference

made to the Constitution shall refer to this old Zimbabwean Constitution unless indicated otherwise. 5 Section 121 (1) provides for a right to appeal against a bail decision made by the Magistrates’ Court to the

High Court. Subsection (2) relates to an appeal against a bail decision made by the High Court to the Supreme Court.

Electronic copy available at: http://ssrn.com/abstract=2368221

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of intent to appeal made by the prosecutor to the adjudicating court. In reality

therefore, an accused person will remain in custody despite being found to be a

proper candidate for bail. The accused person stays in custody until the expiry of

seven days after detention or if the prosecution fails to lodge the appeal within seven

days, by expressly abandoning the decision to appeal.6 In essence, the accused

person is kept in custody for seven days before he can be released.7

The effect of this provision is that a court’s decision to admit a person to bail is

consequently ‘overridden’ by the notification made by the Prosecutor to the court.

The “overriding” is ex lege; the state need not make a separate application for further

detention of the accused. No provision is made for the court to review the merits of

the notice; neither is there any requirement that the prosecution should first seek

leave to appeal the court a quo’s decision to admit to bail.

The contentious part of the section relates to the suspension of the court’s decision

to admit an accused person to bail upon the prosecution notifying it of its intention to

appeal such a decision. This effect however does not attach to an appeal made by

an accused person who might have been denied bail.8 Such an accused will remain

in custody until the appeal is determined.

It is no doubt that section 121 is meant to serve a particular purpose, apparently

aligned to the effective administration of criminal justice. However, such drastic

provisions should be viewed as responding to a mischief that requires drastic

measures. It could thus be asked whether such mischief existed and if it did exist, it

required such drastic measures as section121. It could also be asked whether the

timing of such drastic provisions coincided with any socio-political or legal

developments in Zimbabwe. In order to critically assess these issues, a brief analysis

of such socio political developments, particularly constitutional and political

developments is necessary.

6 Section 121(3) (a) (i). 7 Section 121 (3) (a) (ii). 8 Section 121 (4).

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2.2. The Constitutional System9

Zimbabwe has a legal system based on constitutional supremacy; the constitution

thus constitutes the fulcrum upon which the country’s legal system revolves.10 This

constitutional supremacy implies that all other legislation should be consistent with

the Constitution or otherwise invalid to the extent of their inconsistency.11 The old

Constitution’s Declaration of Rights in Chapter 3 was dedicated to protection of

individual rights and freedoms, including the protection of the right to personal

liberty.12 In the new Constitution, Chapter 4 has substituted Chapter 3 of the old

Constitution and is now committed to the protection of fundamental rights. Thus

section 121 can only be scrutinised against this constitutional framework, particularly

the provisions relating to the protection of the right to personal liberty.

Section 121 should be assessed against section 13 of the old Constitution and

sections 49 and 50 of the new Constitution which prohibits the deprivation of

‘personal liberty’ save in certain listed circumstances.13 The old Constitution’s section

13(2) allowed the limitation of an individual’s liberty upon reasonable suspicion of

that person committing an offence or about to commit an offence and for purposes of

remand before plea and after conviction. 14 In contrast, the new Constitution has no

internally built limitations; there is only one general limitation clause in sections 86

and 89 against which any possible limitations of rights will be made.

The broadly worded internal limitation clause in the old section 13(2) justified the

deprivation of an individual’s right to liberty even where an offence has not been

committed but where there was reasonable suspicion that the individual might

commit an offence. This provision needed to be restrictively and cautiously

interpreted in order to avoid detaining an individual on flimsy grounds that he is

about to commit an offence. In an attempt to counter the possibility of unjustified

detention, provision was made for a detained accused person to be expeditiously

9 In 2013, Zimbabwe passed a new Constitution, through Constitution of Zimbabwe Amendment Act (No. 20) Act, 2013. 10 Section 2 of the new Constitution. Cf. s3 of the old Lancaster Constitution of Zimbabwe, 1980. 11 Section 2 of the Constitution. 12

Section 13 of the Constitution. 13 Section 13(1) of the Constitution. The grounds are listed in subsection (2) and includes for purposes of

executing various court orders (sub sec (a)-(d); public healthy (g); mental health (h) and preventing unlawful

entry into the country (i). 14 Section 13 (2) (e) read with sub sec (a) of the Constitution.

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arraigned before a court without ‘undue delay’ and within a reasonable time.15 Such

an accused is entitled to conditional or unconditional release from custody if he is not

tried within a reasonable time.16

The capstone upon which bail proceedings are built lies in these constitutional

provisions that entitle the detained accused person to be brought before a court of

law to stand trial within a reasonable period of time. If he is not tried, he is entitled to

be released on conditions that he stands trial or appear before a court of law if such

release does not prejudice any further court proceedings against him.17 As such the

limitation of an accused’s liberty, as section 121 is intended to achieve, must be

viewed in light of this provision.

2.3. The right to fair trial in the Old Constitution

Section 18 of the old Constitution guaranteed an accused person the right to fair

trial,18 providing that an accused must be afforded a fair hearing before an

independent and impartial court within a reasonable time. 19 Crucially, provision was

made for such an accused to be presumed innocent until proven guilty or he pleads

guilty.20 Finally, the right to secure protection of the law was extended to include the

right to be given adequate time and to facilitate an accused person’s defence.21

Section 18 therefore provided a raft of legal guarantees designed to ensure that

accused persons receive a fair trial.22 The presumption of innocence lies at the heart

of the Zimbabwean criminal justice system.23 Pre-trial incarceration not only deprives

an accused’s liberty but can also infringes his right to be presumed innocent given

15 Section 13(4) of the Constitution of Zimbabwe. 16 Section 13(4) of the Constitution. 17 Ibid. 18The section is entitled ‘Provisions to secure protection of law’ and is meant to secure guarantees for fair trial and other fundamental guarantees necessary in Zimbabwe’s criminal justice system. 19 Section 18(2) of the Constitution. 20 Section 18(3) (a) of the Constitution. Section 18(3(a) of the Constitution. This presumption entails that an

accused person who is not yet convicted, is still innocent until proved otherwise by a court of law. 21 Section 18(3) (c) of the Constitution. 22 These guarantees are provided for in s18 (3)(a)-(f) of the Constitution. Of significance to this discussion are

those relating to the presumption of innocence (sub sec (a)) and giving adequate time facilities to prepare for a

defence (sub sec (c)).

23 See remarks by Gubbay CJ in S v Chogugudza 1996 (1) ZLR 28 (S) 32E-34C. See also PJ Swikkard

Presumption of Innocence (1999) 7-9.

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that he is still to be convicted. It is however not always the case that whenever an

accused, who is presumed innocent is detained, such presumption is violated. The

interests of justice might demand such pre-trial incarceration especially if it can be

shown that releasing him would prejudice the administration of justice.

It is however clear that the Constitution recognises the exclusive jurisdiction of the

courts in the determination of an accused’s guilt or innocence in order to avoid

unjustified pre-trial incarceration. It must be stressed that nowhere in the old

Constitution was this authority granted to the State or any of its organs outside the

judiciary. The Constitution thus confirmed the separation of powers doctrine that is

fundamental to the courts’ ability to give effect to fundamental human rights through

interpretation and application of the law.

Importantly, the old Constitution implicitly acknowledges that the exercise of the

rights to liberty and fair trial should be the norm rather than the exception within the

criminal justice system. The criminal justice system must be in sync with this

constitutional objective. The bail mechanism in particular is intended to ensure that

the criminal justice system give effect to these constitutional values. To this end, bail

is designed to prevent pre-trial punishment24 and to minimize any abrogation of an

individual’s right to liberty or the negation of the presumption that every person is

innocent until proven guilty.

The constitutional positions illustrated above are not fundamentally different from the

critical aspects of criminal justice entrenched in international human rights

instruments as well as comparable jurisdictions. It is necessary therefore to briefly

explore the international human rights standards in this area before analysing the

extent of departure from the ideal introduced by section 121.

3.1. International perspectives

24 See generally S v Acheson 1991 (2) SA 805(Nm); J van der Berg Bail: A Practitioner’s Guide 2ed (2001) 1

stressing bail’s non-penal nature.

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The right to liberty is recognised in clear terms in international human rights

instruments such as the United Nations’ Universal Declaration of Human Rights,25

the International Convention on Civil and Political Rights26 and the African Charter on

Human and Peoples’ Rights.27

The Universal Declaration recognises the right to liberty in equal terms with such

esteemed rights as the right to life and security of the person.28 Articles 10 and 11(1)

entitle an individual to a fair hearing before an independent and impartial tribunal as

well as to be presumed innocent until proven guilty by such a tribunal.29 These two

rights are further confirmed as essential elements necessary for preparation of an

adequate defence.30

The International Convention on Civil and Political Rights deals with, inter alia,

various aspects of the right to liberty that impacts upon bail proceedings and the

criminal justice system. Article 9 provides for the right to liberty and provision decries

subjection of an individual to ‘arbitrary arrest or detention’ as this infringes upon his

right to liberty. However, this right can be limited, albeit in terms of legally

established grounds and procedures. These grounds and procedures can be taken

to mean legal rules and principles enacted and developed by different criminal

justice systems. An accused person is also entitled to be promptly brought before a

court of law.31 This proviso is crucial in bail proceedings as it stresses the need to

25 United Nations High Commissioner of Human Rights Universal Declaration of Human Rights. The Universal

Declaration of Human Rights was adopted by Resolution 217(A) (111) of the United Nations General Assembly

on 10 December 1948(herein ‘the Universal Declaration.’) 26 United Nations High Commission for Human Rights International Convention on Civil and Political Rights.

Adopted by the United Nations General Assembly resolution 2200A (XX1) of 16 December 1996 and entered

into force on 23 March 1976 (herein ‘the International Convention on Civil and Political Rights.’) 27 Organisation of African Unity (OAU) (now the African Union) African Charter on Human and Peoples’

Rights adopted by the OAU on 27 June 1981 and entered into force on 21 October 1986. (“African Charter”). 28 Article 3 of the Universal Declaration of Human Rights. 29 See Articles 10 (right to a fair trial) and 11(1) (presumption of innocence) of the Universal Declaration of

Human Rights. 30 Article 11(1) of the Universal Declaration of Human Rights. 31 Article 9(3) of the International Convention on Civil and Political Rights. The United Nations Office of the

High Commissioner for Human Rights also notes that ‘pre- trial detention should be an exception and as short as

possible.’ See Office of the High Commissioner of Human Rights General Comment 8 Right to liberty and

security of persons (Art 9) 06/30/1980 available at

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument accessed on 02 October 2011.

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minimise pre-trial incarcerations by allowing the release of accused persons on bail

where necessary.32

Finally, the African Charter confirms the importance of the right to liberty.33 Provision

is made to the effect that one is entitled to this freedom and cannot be deprived

thereof absent established legal reasons and conditions.34 The Charter further

recognises a particular prohibition to arbitrary arrest and detention that deprives one

of his liberties. Article 7 entitles an individual to be tried by a competent tribunal. This

right is expanded to include the right to be presumed innocent until proven guilty by a

competent court, the right to defence and the right to be tried within a reasonable

time.35

The above international human rights instruments lays the foundation upon which

bail is founded. It is imperative to note that these instruments in one way or the other

acknowledge that the rights to liberty and fair trial are subject to legitimate limitations.

The question then is whether the new provisions of Zimbabwe’s criminal procedure

law legitimately limits these rights and to what extent does the limitation impacts

upon the criminal justice system. In order to explore this issue, the following part will

look at the significance of bail and its place in Zimbabwe’s criminal justice system.

4. Bail and the Zimbabwean criminal justice system

Despite the old Constitution generally confirming the international position on the

rights to liberty and fair trial, the exact extent to which these guarantees are given

effect can only be shown through an examination of the Criminal Procedure and

Evidence Act and how the provisions relating to bail have been dealt with by the

courts. This part explores these issues.

4.1. General principles

Given that bail proceedings serve an important purpose in ensuring that an

accused’s constitutional rights to liberty and fair trial are safeguarded, the bail statute

32 Ibid. 33 Article 6 of the African Charter. This provision also includes the right to security of the person. 34 Article 6 of the African Charter. 35 Article 7(1).

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accordingly provides for bail as a right.36 However, as the case with other rights, this

entitlement is limited on certain listed grounds. The justifiability of these limitations is

a thorny issue that have placed the statutory provisions relating to bail under a great

deal of scrutiny by the courts.

Courts have adopted a liberal attitude in interpreting bail provisions. This attitude

leans towards granting bail to an accused person.37 The lenient approach is

exemplified by the admission that bail is a procedure sui generis that must be free of

rigid formalities.38 This approach simplifies bail proceedings in order to rid the

procedure of unnecessary barriers to the enjoyment of the right.39

An accused person is entitled to his release at any time after making a court

appearance and before conviction. The accused person’s right to bail is limited only

if it can be shown that further detention is in the interests of justice.40 This

determination is made by the court and the state bears the onus of proving that

denying the accused bail is in the interests of justice.41 The fundamental question is

thus what constitutes the interests of justice? In other words, when is limiting the

accused’s right to bail and in the process, limiting his right to liberty and fair trial

justified?

4.1.2. When is refusal to admit to bail justified?

Section 117 (2) lays down grounds upon which denying an accused person will be

deemed to be in the interests of justice. These grounds form the basic principles of

bail and accordingly will be discussed briefly below.

Bail is not in the interests of justice if there is likelihood that the accused will not

stand trial upon his release.42 In determining whether or not an accused person will

not stand trial upon release from custody on bail, the court assesses such factors as

36 Section 117(1) of the Act as amended by s9 of the Criminal Procedure and Evidence Amendment Act 9 of

2006. 37 See S v Biti 2002 (1) ZLR 115 CH. 38 See S v Ncube 2002 (2) ZLR 524 (H). Section 117A (1) of the Act allows either oral or written bail

applications. 39This accords with international trends, see for instance Mansfield Justices ex p Sharkey [1985] Q 13 613(court

accepted state’s opinion based on police officer’s account which was in itself based on an account of a potential

witness that the accused intended to abscond). 40 Section 117 (1) of the Act. 41 Ibid. 42 Section 117(2) (a) (ii) of the Act. Cf Schedule 1(10) (i) to the Bail Act (UK).

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the nature and seriousness of the offence being faced by the accused and the likely

sentence in the event of conviction;43 the strength of the state’s case against the

accused;44 the accused person’s ability and means to skip the country45 and the

nature and conditions attached to bail.46

To prove that the accused person is likely to abscond if he is admitted to bail, the

prosecution must adduce evidence to the effect that he is a real flight risk47 including

that he is a capable of skipping the country.48 Furthermore, the state must not only

allude to the fact that the accused is facing a lengthy prison term if convicted due to

the seriousness of the offence charged, but also that the state has a strong case that

warrants conviction.49 However, these factors are not conclusive and need to be

assessed in conjunction with others in determining whether an accused must be

denied bail.50

Denying bail is also justified if the prosecution can prove that if upon release the

accused person will prejudice the administration of justice.51 The prosecution must

prove that there is a real risk that the accused might interfere with investigations52 or

with state witnesses.53 There must be a well-founded apprehension that he will, not

43 Section 117(3) (b) (iv) of the Act. 44 Section 117 (3) (b) (v) of the Act. 45 Section 117(3)(b)(ii) read with sub sec (iii) of the Act make reference to the assets held by the accused as well

as means of travel and his ability to access travel documents or the possession thereof. 46 Section 117 (3) (b) of the Act. 47 Section 117 (2) (a) of the Act makes it clear that an accused can be denied bail if ‘there is likelihood…’ In S v

Gwatiringa HH-128-88 the court rejected the state’s broad allegations that the accused might abscond as being

based on unsubstantiated allegations. See also Aitken v A-G 1992(1) ZLR 249(S) at 255D. The risk of

abscondment must be real not based on broad unsubstantiated allegations. 48 Section 117(3) (b) (ii) read with sub sec (iii) of the Act. See also Aitken supra (n166) at 254 E. The state must

show that the accused has the means to skip the country, see S v Mahlangu 1963 (3) SA 795 (C) at 796; S v

Nichas supra (114) at 263 and 264 H. Furthermore, must prove that he possess the resources to sustain life in

another jurisdiction, see S v Jongwe 2002 (2) ZLR 209 (S), S v Hussey 1991 (2) ZLR 187(S); S v Chiadzwa 1988(2) ZLR 19 (S). 49 S v Makamba S-30-04. Hungerford-Welch op cit (n3) 150. The reason behind this is that the weaker the

state’s case, the lesser the chances of conviction and motive to abscond diminishes. Equally, the strong the

state’s case, the higher the chances of conviction and the motive to abscond in fear of a lengthy prison sentence. 50 The fact that an accused is facing serious offences and possess the means to skip the country is not conclusive

in denying an accused bail. See Aitken supra (n66) at 254 E. In S v Mambo 1992(1) ZLR 245 (H). Also where

an accused had handed himself to police after a lengthy absence from the country. However if it be established

that the accused had previously absconded after been admitted to bail, then he is not a suitable candidate for

bail. See, S v Kathrada 1961(3) SA 593 (T) at 596. 51 Sections 117(2)(a)(iii),(iv) and(v) of the Act. Cf. Schedule 1(1) (iii) to the United Kingdom Bail Act 1976. 52 See Chiadzwa supra (n48), attempt to bribe a police officer. 53 S v Maharaj 1979 (3) SA 205 (D), accused had persuading a state witness to disappear.

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a mere suspicion that he may.54 The state thus must not rely on uncorroborated

allegations that the accused is likely to interfere.55

It is not in the interests of justice if it can be shown that upon his release, the

accused is likely to pose a threat to the safety of the society by committing similar or

further offences.56 This is because it is in the interests of justice to ensure that the

public is protected not only from criminal activities but also from those likely to be

committed by an accused that is on bail.57 This prosecuting must show, inter alia,

that the accused is a habitual criminal with a propensity to commit further offences

whilst on bail58 hence a public security risks.59 If this can be proved, then denying

bail will be justified. However, it must be emphasised that preventive detention must

not be used as a general deterrent since bail must be viewed as non-penal in

nature.60 Bail proceedings must not be used to punish a presumably innocent

person.61

An accused person must not be denied bail if the prosecution can satisfactorily

establish the existence of one or more grounds justifying such refusal. It is only upon

such justification that the court must deny an accused bail thereby legitimately

depriving him of his liberty. Should the prosecution fail to establish these grounds,

the court have no option but to admit an accused to bail. However, either way, the

court’s decision to admit or refuse an accused person bail is subject to appeal.

Section 121 of the CPE Act entitles any party to bail proceedings to appeal a

decision of a lower court regarding bail to a superior court. However, as shown

above, this provision impacts on the criminal justice system in particularly bail

proceedings as it have the potential to negate the fundamental principle underlying

bail, that is, an accused person must be admitted to bail unless if such admission

can be justified in the interests of justice. This aspect will be explored below.

54 This test was formulated by Vos J in Bennet supra (n101) at 655 G-H. See Chiadzwa supra (n48) at 22H-23A

(actual interference aimed at stifling investigations pending the case). 55 S v Hussey supra (48). 56 Section 117(2) (a) (i) of the Act. cf. Schedule 1(1) (ii) to the United Kingdom Bail Act 1976. 57 G Feltoe Criminal Defender’s Handbook (2009) 34. 58 Attorney-General v Phiri 1987 (2) ZLR 33 (H); S v Fourie 1973 (1) SA 100 (D). 59 The risk diminishes if the accused was merely suspected of committing an offence without conviction.See S v

Pemba HH-133-89. 60 S v Acheson supra (n40). See also J van der Berg Bail: A Practitioner’s Guide 2nd ed (2001) 1 61 S v Visser .

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5. The implications of section 121 on criminal justice

A unique feature of the bail statute is the provisions relating to appeals against bail

decisions in section 121. Section 121 entitles any aggrieved party to bail preceding

his exercise of the right to appeal a court’s decision if he is not admitted to bail.62

However, it is common cause that bail proceedings are designed to strike a

compromise between two important but conflicting interests. On one hand there are

the interests of justice represented by the state through its prosecuting machinery.

On the other hand, there are the accused person’s interests in ensuring that his

constitutionally guaranteed rights to liberty and a fair trial are protected. Bail ensures

that an accused person, who is presumed innocent until proven guilty enjoys his

liberty and is afforded an opportunity to prepare his defence as long as he does not

prejudice the interests of justice. This balance can be maintained if certain pre-

requisites are met.

The first requirement is that the parties to the proceedings must act on equal footing.

Although section 121 gives both the state and the accused person a right to appeal,

the effect of exercising such a right varies. An appeal by the state automatically

suspends the court’s decision regarding bail.63 Unfortunately, the same cannot be

said of the decision by an accused to appeal against a decision to deny him bail. If

an accused that is aggrieved by a court’s decision regarding bail appeals against

such decision, the appeal will not suspend the decision. As such the accused that it

is presumed innocent will remain in custody until the appeal is determined by the

appellate court.64

It is clear that the provision creates ‘inequality of arms’65 and an uneven playing field

that tilts the pendulum in favour of the prosecution. This is because this provision

elevates the state to a super party in bail proceedings. The suspensive effect of the

62 Section 121 (1) (a) and (b) of the Act.

63 Section 121 ((3) of the Act. 64 Section 121 (4) of the Act. 65 The principle of ‘equality of arms’ is recognized in international human rights law as being integral to the

right to fair trial entitling both parties to same procedural and substantive rights and powers before the courts, in

order to present their cases without any one party suffering substantial disadvantage; see for instance Morael v.

France, Communication No. 207/1986, 28 July 1989, U.N. Doc. CCPR/8/Add/1, 416; See also Prosecutor v

Dusko Tadic, International Criminal Tribunal for Yugoslavia Case No. IT -94 -1- A, 15 July 1999, paras 29 –

50.

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section operates ex lege, without the prosecution having to make any separate

application. What is merely required is the prosecution to notify the court of its

intention to appeal the court’s decision and the latter’s decision is “frozen”. The

accused person remains in custody pending either the lodging of the appeal by the

state to a superior court and its subsequent determination or notice by the state of its

intention to abandon the appeal or expiry of a seven day period whichever occurs

first.66 Whereas an accused person has to appeal a decision denying bail whilst in

custody and has to make an application to a superior court, the state merely has to

notify its intention to do so for the decision to be suspended. Furthermore, unlike the

state, the accused person has to wait for the determination of the appeal to either

regain his liberty or be condemned to custody.

The further detention of the accused person is a result of the suspension of the

court’s decision to grant him bail. The accused is thus incarcerated even before he is

found guilty. This pre-trial detention is not because he is not a suitable candidate for

bail. The court which is the authority vested with the responsibility of determining

whether or not the accused’s release on bail will be in the interests of justice, might

have found in favour of the accused. As such the prolonged pre-trial detention

cannot be said to be in the interests of justice as it is not founded on any grounds

recognised by the court. Accordingly one can argue that such further detention as a

result of the suspended bail decision is a violation of an accused’s right to liberty and

is unconstitutional.

Closely related to the uneven playing field is the fact that a further detention will

greatly prejudice an accused person’s chances of preparing a meaningful defence,

hence greatly tilting the contest in the state’s favour.

The argument by proponents of section 121, that the section allows the state to

advance the interests of justice through correcting judicial mistakes in interpreting

and applying the law is a mockery of the esteemed doctrine of separation of powers.

The prosecution is part of the executive whose function is to enforce the law. The

courts form the judiciary mandated with interpreting and applying the law as laid

down by the legislature and enforced by the executive. If the arguments above are

66 Section 123 (3) (a) (i) and (ii) of the Act.

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anything to go by, then the state doubles as both a player and an official in the same

game, and in such game, the state would definitely not promote the interests of its

perceived opponents. The whole exercise becomes a threat to the criminal justice

system as it is blind to the need to protect fundamental human rights.

Can the mischief, if any, which the proviso intends to address be dealt with by

means with less drastic effects on the system? A glance at the South African system

relating to appeals against bail decisions might be necessary. Section 65 of the

South African Criminal Procedure Act67 regulates appeals regarding bail decisions.

Section 65(1) entitles a person who is aggrieved by a bail decision to seek relief from

a superior court. Such an appeal is treated as an urgent matter and must be

dispensed with promptly.68 Of relevance is that an appeal does not suspend the

court’s decision pertaining to bail.69

The South African statute entitles the state as a party to bail proceedings to appeal

against a bail decision if it is aggrieved.70 However, as the case with an appeal made

by an accused, such an appeal does not suspend the court’s decision. The accused

will thus be subjected to the terms of the decision pending the determination of the

appeal. If the appeal is upheld, the appellate court will issue a warrant of arrest for

the accused thereby revoking the decision of the lower court.71 This position is in

sharp contrast with the Zimbabwean situation. It is thus argued the South African

approach is plausible as it does not unnecessarily compromise the principles of bail

whilst simultaneously safeguarding fundamental rights and freedoms of accused

persons.

Lastly, section 121 exaggerates the role of the state as the dominis litis as it confers

upon the state a super organ status that makes a mockery of the justice system.72

The court is demoted to a lesser party with no power to review the merits upon which

the notice of appeal is based. It can simply and passively watch as its decision is

67 Criminal Procedure Act 51 of 1977. 68 See Prokurer-General, Vrystaat v Ramokhosi 1997 (1) SACR 127. There is no need to seek leave to appeal if

the s trial is still pending, see Joubert op cit (n3) 148. cf in instances where the accused is awaiting sentence

after conviction, S v Siwela 1999(2) SACR 685 (W). 69 Section 65 (4) of the Criminal Procedure Act 51 of 1977. See also S v Barber 1979 (4) SA 218 (D). 70

Section 65A (2) (a) of the Criminal Procedure Act 51 of 1977. 71 Section 65A (3) of the Act. 72 See also S v Zuma 2006(2) SACR 257 (W) at 265 a-b where it was emphasized that the fact that the

prosecution is the master of the case must not be given exaggerated importance

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revoked by the prosecution. This renders the court powerless and least able to

discharge its traditional role of custodian of fundamental human rights in a

democratic society.

6. Concluding remarks

There is no doubt that section 121 of the CPE Act fell foul even of the old

Constitution. The new Constitution is more progressive and goes a step further at

protecting fundamental freedoms and rights. Indeed, the new Constitution sits at the

apex of all the laws regulating the Zimbabwean criminal justice system and most of

these laws have to some extent adopted fundamental international human rights

standards and infused established principles and procedures aimed at promoting the

respect for fundamental rights without unnecessarily compromising the

administration of criminal justice. Unfortunately, these noble features of the system

had been overshadowed by the effects of section 121 of the Criminal Procedure and

Evidence Act which in practise authorises pre-trial detention of accused persons who

would have been admitted to bail. This era is over now and the time has come for

this retrogressive provision to be struck off the statute book.

Section 121 represented not only a drastic departure from the basic principles

underlying bail proceedings in comparable jurisdictions, but also a largely unjustified

infringement of the celebrated constitutional rights to liberty and fair trial in

Zimbabwe. It made it extremely difficult to justify its purpose in a modern society that

purports to be guided by the respect of fundamental human rights. Needless to say

the section could have continued to have dire implications for the criminal justice

system in Zimbabwe as it impacted, in the past decade, upon both constitutional

rights and constitutional principles embedded in Zimbabwe’s legal system.

The writers perceive that provisions such as section 121 do not only create an

uneven playing field between the state and the accused, but also elevate the former

to a super organ that is capable of even subjugating judicial decisions to its whims

and apprehensions. Provisions such as these create unnecessary anxiety within the

legal fraternity. Accordingly, a call is made for the amendment of the CPE Act in

order to reinstate the courts’ powers in judicial proceedings and recast the power

relations of parties in bail proceedings. The suspensive effect introduced by section

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121 of the CPE Act should be discarded and replaced with a requirement that a

warrant of arrest be issued for the accused in the event of an appeal overturning a

decision in favour of bail against an accused person. Until such or better changes

are effected in the law, the right to liberty enshrined in the new Constitution might

prove too slippery an object for Zimbabwean criminal justice system to achieve.