Section 121 unconstitutional: Con-Court

HARARE - Section 121 of the Criminal Procedure and Evidence Act (CPEA) is unconstitutional, Zimbabwe’s top court ruled yesterday, piling pressure on government to reform the clause widely used in politically-motivated prosecutions.

Section 121 was used to suspend a bail order issued by a magistrate for seven days to allow the State time to contest the decision.

The section gave the State powers when a suspect was granted bail to notify the court of its intention to challenge the decision.

By operation of law, the suspect remained in custody pending the hearing of the appeal.

The ruling comes after four MDC suspects, accused of public violence, malicious damage to property and disorderly conduct, approached the highest court in the land, arguing that the section was constitutionally impermissible in that it allowed prosecutors to arbitrarily deny accused persons granted bail by a magistrate their right to liberty.

Fanuel Kamurendo, Shelton Masamba, Wilbert Ndiweni, Tendai Kamurendo and Elizabeth Dube, through their lawyer Thabani Mpofu, who was instructed by Kudzayi Kadzere from Kadzere, Hungwe & Mandevere Legal Practitioners, successfully argued to have the provision declared void.

Following the hearing of submissions made yesterday, Chief Justice Godfrey Chidyausiku, leading the full Constitutional Court bench of nine judges, ruled that the section was indeed unconstitutional.

“The application in this matter succeeds,” he said.

“It is declared that Section 121 (3) of the Criminal Procedure and Evidence Act Chapter 9:07 is unconstitutional in that it’s ultra vires Section 13 (1) and Section 18 (1) of the former Constitution of Zimbabwe.”

He did not give an order pertaining to the issue of costs and added that detailed reasons for the ruling would be given in due course.

The four MDC suspects were arrested on allegations of tearing President Robert Mugabe and the late army general Solomon Mujuru’s posters in February 2013.

They were further accused of using abusive words and behaving in a threatening manner by proceeding to Zanu PF offices, while chanting MDC slogans.

While making submissions in court, Mpofu said the provision was too wide and allowed prosecutors to act capriciously, maliciously and vindictively.

He said that the provision did not give the prosecutor an obligation to explain his or her decision to invoke the bail or to state if there were any prospects of success in the appeal.

Mpofu said because of the State’s wide discretionary powers, the provision was liable to abuse, adding that it was offensive in a democratic society.

However, representing the State, Edmore Makoto had argued that the provision was reasonably justifiable in a democratic society.

He said that because the suspects were facing a politically-connected charge, there was fear that they would abscond or would cause violence.

But Chidyausiku asked him to justify the permissibility of the State’s powers to deprive a person his liberty after being granted bail by a court of law.

Makoto argued the provision sought to bring checks and balances in the justice delivery system, but Chidyausiku said it was clear that the State was the one which was abusing the section by keeping people inside prison for seven days and failing to prosecute their appeals.

“It (prison) is not a five star hotel,” Chidyausiku said, adding that the use of the provision was more sadistic than legal.

“You are a law unto yourself. You are making the law as you go along. If you want it (the provision) in the statutes, you amend the Constitution and add the provision,” he said.

Deputy Chief Justice Luke Malaba said once the State conceded that the provision was being abused for political reasons, that was the end of the story.

“All the actions points to abuse,” Malaba said.

Makoto made unsuccessful requests for an adjournment twice.


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