The constitution of Zimbabwe provides, at section 50 subsection (1) paragraph (d) that a person who has been arrested:
“must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.”
We did not, before the foreigners came to our land and took it over in 1890, have a system of bail. Justice was restorative and liberty was never deprived. Justice was never used as a tool with which to whip people into line and, when they said “svimbo haivaki musha” they meant that justice was never intended to be harsh. It couldn’t have been, because “Mambo haatongi neshanhu” as the saying went.
Colonial justice systems, according to our every own George Hamandishe Karekwaivanane, were designed “for the creation and maintenance of the social, economic and political order envisioned by the colonial authorities.” To paraphrase into non-Cambridge educated English, the law was intended to serve the colonial masters and their interests.
Their system of justice centred on one core method of punishment: the deprivation of liberty. After centuries of development, their civilisation had come to value liberty for themselves, and to use its deprivation as a method with which to punish those that strayed away from their rules or those that they regarded as chattels for use in fields: the latter’s cooperation obtained at the bitter end of the whip. It is but a bitter fortune that colonialism came to Zimbabwe after the end of slavery, for it brought only prisons but not that form of bondage and deprivation of liberty. But, to get back to the point: for them prison denies you their most cherished value: liberty.
However, the system that colonialism brought had a cipher meant to avoid caprice and the punishment of those that were, at the end of the criminal trial, found to be innocent. That cipher, is bail.
Bail is the method by which a person that has been charged with a crime, but who is still presumed innocent, can remain at liberty until his trial. Absent compelling reasons justifying the arrested person’s continued detention after arrest, their right to release and liberty pending conviction is regarded as unconditional.
Hence, section 50 of the Constitution. We have copied from them, and have not gone back to African justice approaches. That, is a story for another day.
Over time, courts in this and other countries have grappled with identifying these compelling circumstances that might cause it to be necessary to detain a person that we are all required to regard as innocent until proved guilty. In a case called S v Chiyangwa which is found in the 1st edition of the 2005 Zimbabwe Law Reports at page 163 the judge said:
“Initial remand is an important step in a citizen’s loss of liberty. After arrest without warrant, it is the first time that his case is presented to a neutral body for arbitration of the issue whether or not, on the basis of mere suspicion, the citizen must lose his freedom. If he loses his freedom at that stage, before his guilt is proved, he may face total ruin. He may lose his job, or other means of his livelihood. He could lose his home too if he is a lodger or a mortgagee as he falls into arrears. This could drive his family into destitution and he is forced to rely on State support for livelihood whilst in custody. The consequences are just too ghastly to contemplate for both the rich and the poor. Magistrates are therefore to take the greatest care when approaching the question whether to deny or grant bail.”
When magistrates and judges sit to balance the need to ensure that an arrested person comes to court to face their accuser and his right to liberty, they consider first that the person has a constitutional right to bail, which can only be taken away if, for example, there are reasons to believe that he will run away from the jurisdiction or temper with the evidence or intimidate witnesses.
Think, for example, of a person charged with the theft of millions of dollars, which he allegedly stowed overseas, and who is known to have more than one passport and homes in Singapore or Dubai or South Africa. Such a person might find it easy to abscond if granted bail. Or think of a father charged with molesting his 12 year old daughter who applies for bail saying he wants to be released and go to live with his family and the complainant while awaiting trial: such a person might interfere with witnesses.
Also, although the courts keep claiming that this is not a consideration, the possibility of conviction and jail time is used as a reason to sometimes deny people bail. That this is an assault on the presumption of innocence seems lost to many, especially prosecutors, who routinely argue this point in any bail application that they routinely oppose. But, conversely, if the crime is such that only a fine or suspended jail term is expected, then by this logic you should not be denied bail.
The system as designed by the usages of the colonial progenitors and their descendants guards against accused persons absconding abroad by taking their passports until the end of the trial. When said accused person is a famous person, chances are that we know what passport they hold. There is an added incentive for such people to comply: because a famous person cannot easily jump the border: think Tsvangirai at the Botswana border once upon a lifetime ago, or Biti in the boot of a bus (allegedly) at the Zambia border a non-coup coup ago. But, note that generally speaking some jobs are so important that your place of work might even write to the Courts to say that you must be given your passport back in order to attend important meetings abroad while still on bail.
In other words, bail as conceived in western countries works on predictably predictable rules.
The one thing that gives credence to this colonially inherited concept is that bail is not a punishment. It is not a tool with which to punish the accused person, particularly when the beginning of trial is capable of being suspended for years.
But, like all things inherited from our colonisers, bail and the criminal justice system presuppose the existence of a number of functional institutions. The system assumes that the prosecution of persons is based on an objective assessment that there is prima facie evidence that they have committed an offence. It assumes that the police will only arrest on that basis, not any other. It assumes that the Prosecutor General will make an un-incentivised assessment about the question of bail, and not oppose bail out of fear that certain powers might ask why such bail was not opposed. It assumes that the arrested person will appear before an independent judicial officer who is not only adequately compensated but is unafraid of interference in what they do or, in some cases, of being fired outright. Tribunal or no tribunal.
In other words, the system works not in isolation but as part of a whole fabric designed to ensure that it works. Gam up one cog in that fabric, and it all unravels.
So that, despite its colonial underpinnings, it is possible to find consistency between our inherited criminal justice concept of bail and our own indigenous belief that “svimbo haivaki musha.” Justice is tempered with compassion, and only those deserving punishment …..ah, deserve it.
Now, suppose you are an MP arrested for speaking at a gathering. Prima facie (which is just lawyer talk for “on the face of it”), the state is already on shaky ground; since speaking at a gathering in an MP’s stock in trade and a constitutionally protected right, you likely haven’t committed a crime. Suppose that you have an incompetent PG who decides that this sin (speaking in public in a country that guarantees the right to freedom of expression) merited prosecution, you are already guaranteed bail because (a) there is very little chance of conviction since you were exercising a constitutional right, (b) as an MP you are not likely to abscond and be difficult to find given that you must show up in Parliament from time to time, (c) if convicted you are likely to get a suspended sentence and/or a fine, neither of which would be an incentive to abscond and (d) other MPs arrested for more serious offences have not only been granted bail, but have had Parliament write to the courts to support their applications to get their passports back so that they travel abroad. So, on the law and the principles underpinning it, bail should in that case be granted. The possibility that you might languish in prison for longer than any court will sentence you must be very remote indeed.
Outside of certain circles that believe that supporting a government means the uncritical acceptance of everything and anything that it does no matter how odious, there are very few people that would find fault in the foregoing.
That being the case, I think we need to talk about Job Sikhala.
Tinomudaishe Chinyoka is a Harare based Advocate
