Friday, 19 October 2012

By Tapiwa Shumba

The denial of bail for the 29 MDC activists is a misapplication of the law.

In July I sat through the previous bail decision of the 29 MDC activists facing murder charges pursuant to the death of police officer Petros Mutedza in Glen View last year. The trial judge Bhunu vociferously lambasted defence lawyer Mr Kwaramba for insinuating that the accused persons were being denied bail for no other reason except that they are MDC members.

After the bail denial of the 29 activist on the 10th of October, I cannot legally come to a different conclusion other than that the 29 MDC activists are being denied bail because they are MDC activists. The reasoning of the judge does not seem, at least to me, to be adequate from a person who has served about 30 years on the bench. The application of the law in this case is either disdainful, archaic or the judge is simply mischievously misdirecting himself.

Here is the law and why I am surprised that the judge seems to be comfortably and honestly claiming to be simply applying the law yet he is unjustifiably punishing the 29 MDC members. The law is being abused here. Judge Bhunu relies on section 117 (6) (a) of the Criminal Procedure and Evidence Amendment Act of 2006, to deny the 29 activists their right to bail. This section reads as follows:

(6) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in— (a) Part I of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that exceptional circumstances exist which in the interests of justice permit his or her release;

Contrary to the perception being created that the law automatically denies bail under the above provisions if a person is accused of murdering a policeman; the denial is not automatic but subject to the interests of justice. This provision also applies to many other circumstances many of which bail has been granted by the courts with very flexible conditions.
The crimes in Part I of the Third Schedule which by virtue of section 117 (6) (a) qualifies the granting of bail, are many. I copy all the crimes here so that the world can see how the law is being selectively and unfairly applied. These crimes are apparently selected based on violence, gravity and clear existence of aggravating circumstances. The selection clearly shows that the legislature was targeting exceptionally ruthless criminals that should not have a place in our society rather than 29 activists being persecuted by the state which is simply casting aspersions.

Part 1

1 Murder, where (a) it was planned or premeditated; or (b) the victim was (i) a law enforcement officer or public prosecutor performing his or her functions as such, whether on duty or not, or a law enforcement officer or public prosecutor who was killed by virtue of his or her holding such a position; or (ii) a person who has given or was likely to give material evidence with reference to any offence referred to in the First Schedule; or (c) the death of the victim was caused by the accused in committing or attempting to commit or after having committed or having attempted to commit one of the following offences (i) rape; or (ii) aggravated indecent assault; or (iii) robbery with aggravating circumstances; or (d) the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy.

2 Rape or aggravated indecent assault (a) when committed (i) in circumstances where the victim was raped or indecently assaulted more than once, whether by the accused or by any co- perpetrator or accomplice; or (ii) by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy; or (iii) by a person who is charged with having committed two or more offences of rape or aggravated indecent assault; or (iv) by a person who knew that he or she had the acquired immune deficiency syndrome or the human immunodeficiency virus; or (b) where the victim (i) is a girl or boy under the age of 16 years; or (ii) is a physically disabled woman who, due to her physical disability, is rendered particularly vulnerable; (iii) is mentally disordered or intellectually handicapped, as defined in section 2 of the Mental Health Act [Chapter 15:12] (No. 15 of 1996);(c) involving the infliction of grievous bodily harm.

3 Robbery, involving (a) the use by the accused or any co-perpetrators or participants of a firearm; or (b) the infliction of grievous bodily harm by the accused or any co-perpetrators or participants; or (c) the taking of a motor vehicle as defined in section 2 of the Road Traffic Act [Chapter 13:11].

4 Indecent assault of a child under the age of 16 years, involving the infliction of grievous bodily harm.

5 Kidnapping or unlawful detention involving the infliction of grievous bodily harm.
6 Contravening section 20, 21, 22, 23, 24, 25, 26, 27 or 29 of the Criminal Law Code.
7 An offence referred to in Part II (a) where the accused has previously been convicted of an offence referred to in that Part or this P(b) which was allegedly committed whilst he or she was released on bail in respect of an offence referred to in that Part or this Part.
I cannot list all the cases that involved Third Schedule Part I crimes where the accused person was granted bail. However, there is a recent classic example which Judge Bhunu dismissed as “different” to this application.
“Six police officers who recently butchered a Shamva mine worker, Luxmore Chivambo fatally injuring 11 others were granted $50.00 bail. Motion Jakopo (41), Simon Mafunda (32), Michael Makwalo (30), Lee Makope (23), Benedict Tapfuma (22) and Blessing Saidi (26) led by one inspector Aspias Shumba (48), the member in-charge at Shamva Police Station descended upon Ashley Mine Compound and rounded up residents in the wee hours of the night ruthlessly kicking and punching the residents at the same time severely hitting them with baton sticks and clenched fists all over their bodies. The six are facing murder charges. Aspias Shumba commandeered his troops to revenge the alleged theft of his wife Judith’s pace which was believed to contain only one $US1.00 note.”
Judge Bhunu says the case of the 29 activists is different from the Shamva one. I agree, on the facts; However, I disagree that this is not murder covered in Part I of the Third Schedule. There is no way this cannot be classified as Murder where - (d) the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy or; - Murder, where (a) it was planned or premeditated.
The argument that bail is denied for a civilian murdering a police officer and not vice versa is therefore not informed by law because this murder by the Shamva police officers can still fall under some of the crimes listed in Part I of the Third Schedule.
The reasoning of the judge is flawed in many respects. The denial of bail for a person being accused of murdering police officer is not absolute. It is simply a general rule dependent on the accused person satisfying the judge that exceptional circumstances exist which in the interests of justice permit his or her release; on bail. The vehement denial of bail by judge Bhunu claiming that it is a waste of time in these circumstances is a simple misapplication of the law. The responsibility is on him in terms of the same provision to make a decision not in his interests but in the interests of justice.
In making the decision on whether it is in the interests of justice to give or deny the 29 accused persons bail the Judge is not supposed to apply a standard from the jungle but rely on the provisions in section 117 (2) read with 117 (4) which sets out the standards and considerations that the judge should use in determining whether it is in the interest of justice to give or deny bail.
The Court is creating an impression that bail can never be granted in these circumstances because the law says so. In reality the law does not say so; the law requires the Judge to make an assessment in the interest of Justice in terms of the provisions below. The law cannot be so ridiculous to just simply deny a person the right to bail. The law in this case does not define exceptional circumstances as required by this provision; however, it has criteria for determining the interests of justice in bail applications. Exceptional circumstances are not just an end in themselves; they are circumstances that - in the interests of justice permit release on bail. The Judge misdirects himself by asking for exceptional circumstances as if to mean circumstances which are out of this world. Exceptional circumstances should still fall within the ambit of what is in the interests of justice, the criteria of which is set out by law.

The provisions of section 117 which set out the interests of justice determination reads:

117 Entitlement to bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established— (a) where there is a likelihood that the accused, if he or she were released on bail, will— (i) endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or (ii) not stand his or her trial or appear to receive sentence; or (iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or (b) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.
…….
(4) In considering any question in subsection (2) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely— (a) the period for which the accused has already been in custody since his or her arrest; (b) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail; (c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; (d) any impediment in the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused; (e) the state of health of the accused; (f) any other factor which in the opinion of the court should be taken into account.
Looking at these provisions which the judge must employ in determining whether it is in the interest of justice to grant bail, one can only see the insincerity of the court. The 29 accused MDC activists were previously granted bail by the Supreme Court and there is not even an allegation that they violated the bail conditions. They came back to court as required by law and they were subsequently locked up again. The allegation by the prosecution that the accused were a flight risk should never be entertained.
In essence there is no basis for the argument that the 29 activists will (i) endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or (ii) not stand his or her trial or appear to receive sentence; or (iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; neither are there exceptional circumstances that there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security. Any such allegation will be so unfounded because the 29 have practically proved when they were initially released on bail that these circumstances do not exist. What more then can the law require of them?
On the contrary, if we look at the length of the time that has elapsed since the activists were detained which is running to 2 years now; the fact that most of them are getting terminally ill like serious cases of Nyamadzawo Gapare; the fact that the trial is dragging and set to take years to complete due to state delays; and most importantly that there is no case against these activists based on testimonies rendered so far and other factors that we all know – there is great conviction that the interests of justice requires that the 29 activists be released.
Thus; the court, by weighing the interests of justice against the right of the 29 Activists and their personal freedom and in particular the prejudice they are likely to suffer if detained in custody, taking into account; (a) the period for which the accused has already been in custody since his or her arrest; (b) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;(c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; (d) any impediment in the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused; (e) the state of health of the accused; (f) any other factor which in the opinion of the court should be taken into account – should come to no other conclusion except that the interests of justice require that the 29 activists be released on bail.
This is the law and this is how it should simply be applied. However, the way Judge Bhunu is applying this law to deny the 29 activists their right to freedom raises many questions. It is difficult to understand whether the court is truly applying this law. The strictness with which the court is applying the law against the 29 activists provokes a sense of injustice considering that other accused persons who have committed similar offences falling under Part I of the Third Schedule have in the past been easily granted bail.
The law requires that the bail application of the 29 activists be determined using the set legal standards for determining a bail application. Looking at the legal standards set, there is no doubt that the 29 activists over-whelmingly satisfy the requirements for being granted bail. Maybe the court should be reminded that the standard used in the determination of the interests of justice is not personal but legal. I cannot think of anything except that the judge thinks he has too much discretion in this case because the law requires him to be “satisfied”. However, being satisfied in legal terms does not mean to be satisfied as an individual but as a judge administering justice to the nation – as a custodian of justice.
Where even the father and the brother of the deceased police officer Mutedza have come up front to request that the court grant the 29 activists bail, you would think that, in the normal course of justice, this is more than exceptional circumstances. Even if the Mutedza family had been requested to do so, it would not be against the normal principles of justice involving reparations. If the victims and the society pardons an offender but the judge insists that he will punish him, whose justice is he serving then? If the judge cannot accept that it is exceptional for the deceased’s family to request bail on behalf of the accused murderers of their son, what circumstances will ever be exceptional then?
The law should be read and applied with a transformative mind-set from a dictatorship to democracy. For the court to claim that the law automatically denies bail an accused person is simply a way of entrenching a suppressive regime against the fundamental freedoms and rights of the people. The 29 MDC activists have stayed in detention for over a year now without bail; the trial is set to drag on judging by the current pace.
This case is a good cause for the transformation of our judicial system to a system based on the respect of the peoples’ rights and a society founded on democracy, freedom and human dignity.

Tapiwa Shumba is the spokesperson of the MDC Youth Assembly in South Africa

Together to end,building a youth with a difference.

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