In what must be regarded as a positive development on the legal landscape, the political principals of the Inclusive Government have reportedly recommended a review of the Criminal Procedure and Evidence Act (hereafter the “Criminal Code”). If the reform is successful, it could well become one of the key achievements of the Inclusive Government.
Few provisions of Zimbabwean law have attracted as much notoriety and controversy as Section 121 of the Criminal Code. Section 121 permits prosecutors to invoke a power to appeal a decision by a court to grant bail to an accused person, the effect of which is to suspend bail and keep the accused in custody for a period of seven days. In that period the prosecutor may lodge an appeal to a higher court.
It is important to understand the nature of Section 121 and the disquiet over its use, application and effect. There are many real cases that could be used but for present purposes a hypothetical set of facts will suffice.
Assume that John is facing a criminal charge where he is accused of undermining the authority of the President. He is alleged to have made some derogatory remarks against the President and has been taken into custody.
John applies for bail at the Magistrates’ Court. He is granted bail by the magistrate.
However, when the Magistrate announces bail, the prosecutor invokes Section 121 of the Criminal Code stating his intention to consider an appeal against the bail decision. He is not stating categorically that he will appeal.
He is merely saying that he may decide to do so.
Under Section 121, the prosecutor will have a maximum of seven days within which to make that decision.
The effect of invoking Section 121 is that bail is suspended and John must remain in custody for a maximum of seven days during which the prosecutor must decide whether or not to make an appeal.
The prosecutor has no obligation to make the decision before the seventh day. Therefore, he may wait until the seventh day whereupon he will decide whether or not to lodge an appeal.
This means he may elect on the seventh day, not to make an appeal after all. In this case, John may be released but he would have spent an extra seven unnecessary days in custody.
Even in the event that an appeal is made and is dismissed by the higher court on the grounds that there was no foundation or merit in the appeal, John would have endured unnecessary time in custody, the conditions of which are often harsh, inhuman and degrading.
The injustice of the situation gets worse where John is eventually cleared of the criminal charges.
It would mean that John would effectively have been punished for an offence that he did not commit. The prosecutor can get away with malicious application of Section 121 motivated by cruel intention to punish an innocent person.
It is not surprising, given the effect of invoking Section 121 that human rights defenders have raised serious concern over the abuse of the provision by the Attorney General’s Office.
Research done by the Zimbabwe Lawyers for Human Rights (ZLHR) in 2010 has shown that in almost all cases where Section 121 has been invoked, the prosecution has either abandoned the appeal or lost the appeal in the higher court on the basis that the appeal lacked merit.
The same research has also shown that Section 121 is mostly invoked in cases involving charges of a politically-related character and the cases invariably involve political opposition members, civil society actors or human rights defenders. Indeed, there are currently some cases which have been brought before the Supreme Court to determine the constitutionality of Section 121.
More recently, the matter has come before political principals in the Inclusive Government with recommendations that the relevant authorities work out a way to amend Section 121. In response, the AG has been quoted as saying that he does not have the mandate to amend Section 121 and that this matter falls to Parliament to decide. The decision by the political principals on the need to amend Section 121 is a welcome development which must be taken seriously by all those concerned, including the Attorney General’s Office who apply it.
It echoes concerns raised most recently by a High Court judge that Section 121 was being abused by prosecutors. The AG had invoked Section 121 in a case involving employees of Media Monitoring Project of Zimbabwe (MMPZ) who had been accused of denigrating the person of the President. Justice Nicholas Mathonsi issued serious judicial rebuke against what he viewed as abuse of the provision.
Justice Mathonsi stated that the unjustified invocation of Section 121 brought the administration of justice into disrepute. He was quoted as having stated, “The abuse of Section 121 to keep persons in custody who have been granted bail has tended to bring the administration of justice into disrepute. It must be discouraged by all means and the time has come to announce to law officers prosecuting on behalf of the Attorney General that Section 121 should be invoked only in those situations where there is merit in appeal”.
Commenting on the appeal by the prosecutors, Judge Mathonsi stated that the grounds of appeal were “spectacularly without merit” and were “legendary by their lack of merit”.
He was emphatic in stating that, “Persons who have been properly granted bail should not be kept in custody merely as a way of punishment. That is an improper exercise in the discretion given to the Attorney General by Section 121.”
The judge rebuked prosecutors for their failure to apply their minds before invoking Section 121.
Dr Magaisa is based at Kent Law School and can be contacted at email@example.com or firstname.lastname@example.org