Continued from yesterday
Judge Mathonsi’s comments were remarkable in that they were the first judicially pronounced disquiet with the apparent misuse and abuse of Section 121. In any other jurisdiction in which the rule of law is respected and applied, such judicial rebuke would have had serious repercussions on the leadership of the Attorney General’s Office because ultimately, the Attorney General shoulders responsibility for the conduct of his or her law officers. Yet it is typical in our system that these remarks by a judge of the High Court were probably seen at best as a nuisance not warranting serious investigation into the conduct of law officers and the Attorney General’s Office. However, it is useful that the political leadership has taken notice and recommended a review of this provision.
But according to a report by the ZLHR (see http://www.sokwanele.com/thisiszimbabwe/archives/5425), the Attorney General himself had apparently conceded before the Parliamentary Portfolio Committee on Justice, Legal Affairs, Constitutional and Parliamentary Affairs, in early 2010 that “he could not rule out malice, corruption, misjudgement and human error on the part of his law officers in invoking Section 121”. He reportedly conceded that his law officers and prosecutors had at times misjudged when they unnecessarily invoked section 121. International human rights organisation, Amnesty International has also raised concerns and complained about the apparent misuse and abuse of Section 121.
Section 121 and personal liberty
We have seen through the hypothetical case, the negative effect of Section 121 on the rights of an accused person. It represents a serious assault on the right to personal liberty which is particularly problematic because it is invoked in a case where a judicial officer would have applied his mind to grant bail and therefore grant provisional liberty to an accused person.
This is not to say that the state should not be able to appeal decisions where bail has been granted. There may be serious cases in which there is merit for reconsideration by a higher court of the grant of bail, where for example the release of a person threatens public security. Yet these are usually the exceptions and not the rule in all criminal cases. The facility of appeal must not be abused to punish an accused person by depriving him of liberty for an extended period before his case has been fully tried.
Bail laws exist to safeguard otherwise innocent persons from enduring prison before their case has been tried by a competent court. When bail has been granted by a court the decision to appeal must not be taken lightly. Section 121 does not even mean that the prosecutor will make an appeal. It merely gives him time, in this case seven whole days, in which to make that decision. As I will argue, seven days is too long for this purpose and is prone to abuse as experience has demonstrated.
In reforming Section 121, there are two competing demands that must be balanced:
First, there is the interest of efficiency in the justice system, where the public interest in keeping an accused in custody pending trial is considered. On the other hand, there is the right to personal liberty, which is also applicable to accused persons and must be respected. This is a constitutional right that is held in high regard anywhere in the world except in tyrannical regimes. It is predicated on the age-old principle that every person is innocent until proven guilty. Therefore, unless there are exceptional circumstances, a person must ordinarily be kept out of custody pending trial. Bail seeks to give effect to this principle.
Proposals for reform
The current Section 121 is problematic in two respects – the first relates to its time frames and the second is the “human factor” in implementation. The first is easier to deal with but the second, which is far more important, is dependent on the character of the human agents charged with implementing the law and is harder to legislate.
Limiting the time frame
First, the seven day period within which the prosecution is allowed time to decide whether or not to appeal is too long. It is too long anywhere in the world and certainly too long in Zimbabwe where custody conditions for bail suspects have been universally deplored. Keeping a person in custody merely to give a prosecutor an opportunity to decide whether or not to appeal is unnecessary and tantamount to punishment before trial. To my mind, very strict time limits must be set out in the law and these must be observed by the prosecution.
Immediate oral notice
There must be a requirement for an oral notice of the intention to appeal to the court granting bail. This notice must be given prior to the end of the bail proceedings, not afterwards; indeed, not as an afterthought.
Written notice within 2 hours
Secondly, there must be a requirement for a written notice of appeal which must be served on court, the clerk and on the accused person personally within two hours of the conclusion of the proceedings.
This written notice of appeal must contain reasons for the appeal. Should the prosecutor fail to serve the notice on the court or the accused person within the two-hour period, the accused person must be released from custody and the appeal should be deemed abandoned.
The AG might protest that the proposal of a two-hour time frame is too limited but this must be considered in light of the fact that where such an appeal is to made, the prosecution will have seriously prepared for it and where compelling reasons for appeal exist, two hours should suffice.
This will reduce the risk of spurious appeals. Placing an obligation on the prosecution to comply with strict time limits and the need to prepare a notice of appeal should ensure that they apply their mind seriously before invoking the right of appeal.
Dr Magaisa is based at Kent Law School and can be contacted at firstname.lastname@example.org or email@example.com