guest column:Fidelicy Nyamukondiwa
Time and again, magistrates have been lambasted and ridiculed by High Court judges for denying bail in the lower court. The phrase “magistrate misdirected himself” is now a daily routine. Why does one misdirect himself in almost every case brought before him?
The law governing bail is very clear. It is part of the basics of law school. Above all, it has been interpreted so many times that repeating it seems like wasting time. When the same magistrate’s bail rulings are quashed and set aside everytime an appeal is lodged, you are forced to ask questions.
Are the repeated misdirections deliberate? Are the concerned magistrates ignorant of the law? Are they afraid that they may lose their jobs if they rule otherwise? The latter quickly strikes one’s mind if a case under review involves a political figure or someone viewed as furthering a regime change agenda.
Magistrates are members of the Judiciary, an independent arm of the government. They are subject to the law which they ought to apply impartially and without fear or favour.
When they assume office, they swear and undertake to “administer justice to all persons alike without fear, favour or prejudice in accordance with the Constitution and the law”. In what can be termed gross disregard of the rule of law, some magistrates seem to be religiously doing the opposite of what they are sworn to do.
The High Court is often flooded with bail applications which under normal circumstances are supposed to be finalised in the magistrates’ court. The right to liberty is sacred and for that reason, applications for bail must be urgently disposed of. This in turn puts unnecessary pressure on High Court judges. Deserving cases end up being set aside or postponed to pave way for bail appeals.
In October this year, Justice Erica Ndewere was suspended without pay and benefits. The suspension came after she had granted bail to Zengeza West MDC Alliance Member of Parliament Job Sikhala (pictured). After a public uproar, the Judicial Service Commission was quick to issue a statement justifying that the suspension had nothing to do with the bail ruling.
The same month, a complaint letter, purportedly penned by Zimbabwean judges leaked and made headlines after it was circulated on social media. In the letter addressed to President Emmerson Mnangangwa, judges confirmed judicial capture claims.
Part of the letter reads: “It is now an open secret that the Chief Justice now routinely interferes with magistrates and their decisions through the Chief Magistrate’s office.” This probably explains why some magistrates have been routinely denying bail in cases where it is so apparent that it should be granted
We have a full High Court judge who was presumably suspended for refusing to follow a directive to deny bail. In view of that, can you blame a mere magistrate for denying bail to a figure like Harare West (MDC Alliance) legislator Joanah Mamombe, Sikhala, investigative journalist Hopwell Chin’ono or Harare mayor Jacob Mafume?
Court judgments must be accompanied by reasons for the decision. This rationale for the decision is coded ratio decidendi in Latin. In simpler terms, judicial officers must explain reasons for decisions they make.
Judicial capture can force magistrates to hand down gymnastic judgments. Magistrates become gymnastic in the sense that they will acrobatically bend the law in trying to justify decisions which they know are lame.
Through the Constitution, admission to bail is now a constitutional right. The principle that a person must be presumed innocent until proven guilty favours liberty of a suspect. It is only where it is shown that there are compelling reasons justifying continued detention that an arrested person should be denied bail.
It is unfortunate that the High Court recently set a very bad precedent when it granted bail to Musa Taj Abdul, a notorious armed robber who had been a fugitive from justice for the past 20 years. All things being equal, the armed robber was supposed to have been denied bail. This explains why the public prosecutor who “misdirected” the judge has been suspended and arrested.
The law sets out a list of cogent reasons upon which a person should be denied bail. The State represented by the public prosecutor must convince the court that a particular ground applies. It is insufficient for the prosecutor to simply say a ground exists. The particular grounds relied upon must be well grounded. Put differently, grounds must be supported by evidence.
If there is evidence suggesting that an accused will commit further crimes if released, the magistrate must deny bail. If for example, a person has a history of committing crimes especially while on bail, a court should not grant bail.
The law also provides that bail should not be granted if there is a likelihood of evidence tampering or witness interference. This argument holds water if the prosecutor can show that an arrested person has already made attempts to interfere with witnesses or tamper with evidence.
In Mafume’s recent case, bail was refused on the assertion that he had interfered with a State witness. The Supreme Court in an earlier decision (S v Hussey) settled that such an assertion must be well grounded and the State is obliged to give cogent reasons supported by evidence.
If there are good grounds for believing that an arrested person will escape and become a fugitive from justice, the magistrate must dismiss an application for bail. If for example, a person is arrested after an attempt to escape, that person must be denied bail.
Seriousness of charges and severity of the sentence likely to be imposed can induce a person to escape. This is more likely in cases with overwhelming evidence.
It should, however, be noted that seriousness of the offence alone is not a good ground for denying bail. That explains why murder, rape or treason suspects are often granted bail.
“What is repeated in the public domain and on social media about the capture of the Judiciary is no longer fiction or perception, it is in fact reality.”
When magistrates religiously deny bail in cases where it is clear that it should be admitted, one is tempted to conclude that they are trying to protect their jobs. They fear being suspended without benefits!