Imprisoned before being found guilty

HARARE - Pension Murema has been awaiting trial for the past 11 years, and the years he has lost in Harare Remand Prison engaging with a sluggish justice system has impacted him adversely.

Murema’s murder trial had either not begun or had been delayed because of a mix of things — jail authorities had not received a “committal warrant” identifying the court and date of hearing, magistrates’ transfers and lack of fuel at Zimbabwe Prisons and Correctional Services.

Since his arrest in 2006, he was only served with an indictment for trial in November 2015 by a Karoi court.

Accused of allegedly drowning his six-year-old son in a dam 11 years ago, he filed for bail pending trial in the High Court last week, citing unjustified delays of 11 years in the commencement of his trial.

The State alleges that on May 14, 2006, Murema awoke his son around 3am and commandeered him to Born Valley Dam, about 2km from his homestead.

At the dam — situated in Chief Dendera’s jurisdiction in Magunje, Karoi — he allegedly placed some stones  into the deceased’s clothes and threw him into the dam, instantly drowning him.

He was arrested after being fingered as the mastermind of the crime.

Legal experts said the criminal justice system is supposed to ascertain whether an accused person is guilty of a crime through a trial within a reasonable time.

Police and prison officials often fail to fulfil their roles, leading to long delays in trials. Often, however, judicial oversight of detention — which is essential to protect against unlawful or excessive detention — is also lacking.

According to Zimbabwe Lawyers for Human Rights, “the Constitution of Zimbabwe contains a Declaration of Rights applicable to all persons in Zimbabwe.”

Pretrial detainees “retain all the rights of a free citizen save those withdrawn from him by law, expressly or by implication, or those inconsistent with the legitimate objectives of the corrections system.”

“Insofar as awaiting trial prisoners are concerned, it must never be overlooked that they are not convicted and, accordingly, presumed to be innocent of any wrongdoing,” the rights lawyers said.

“The purpose of their detention is merely to bring them to trial…Punishment, deterrence or retribution in such a context is out of harmony with the presumption of innocence.”

Over the years, while various announcements and judgments have been made to tackle the “under trial situation”, little has changed on the ground.

The need for liberty before trial has been incensed by poor habitation conditions at the country’s prison institutions where detainees scramble for food, uniforms, water and ablution facilities.

Liberty Gono, a lawyer at Machaya and Associates, said “while there is a need to balance the interests of justice and rights of an accused person, the State should not be seen to take advantage by delaying a person’s right to a quick trial.”

“A balance ought to be seen hence the saying that ‘justice delayed is justice denied.’

“Honestly, after serving 11 years in remand prison, a person would have almost completed a full jail term. Imagine the prejudice that person would have suffered if eventually he gets acquitted?”

Human rights lawyer Kudzayi Kadzere said constitutionally-enshrined rights guarantees accused persons a speedy trial, but it was the court’s obligation to ascertain the suitability of a person to freedom.

“The reason why some people get to spend so much time is because they would have been denied bail. The Constitution requires a speedy trial but delays are a result of multi-dimensional crisis because there is a shortage of manpower in the judicial system, especially magistrates and prosecutors, such that a speedy trial may not always be guaranteed,” Kadzere told the Daily News on Sunday.

“Accused persons who feel that their right has been infringed on should always apply to the court for release, but if one is not suitable for bail, they will be likely to stay in prison.”

There are also other ways in which the Judiciary enables the denial of fair trial rights and excessive pretrial detention. It is by not adequately considering alternatives to pre-detention, for instance; or by not taking note of undue delays caused by State agencies like the police and prosecution.

Excessive pre-trial detention violates under trial prisoners’ rights to liberty and fair trial, and adversely impacts their life and livelihood.

Legal experts say a lack of effective management of information relating to prisoners, the absence of functional and effective under trial review committees, lack of adequate legal aid, and delays in court productions of under trials — contribute to the problem and the authorities must as a first step, identify and release all those prisoners who are eligible for release under law, including those who have already been in prison for over half the term they would have faced if convicted.

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