THE memo issued by the Prosecutor-General Loice Matanda Moyo dated January 7, 2026, lamenting the routine denial of bail to accused persons awaiting trial, makes interesting reading.
Yet it also offers a measure of relief for a criminal justice system that has drifted perilously far from its constitutional moorings.
In the memo, published and, so far, uncontested in our sister paper NewsDay, Justice Matanda Moyo acknowledges that thousands of prisoners are languishing in remand prison while awaiting trial, a reality that amounts to a direct violation of constitutional rights.
“Of the total incarcerated, 5 970 represent unconvicted accused persons. Our law scoffs at pre-trial incarceration. An accused is presumed innocent until proven guilty,” she wrote.
Having myself spent three months in pre-trial detention, during which the State fought my release on bail with relentless zeal, even resorting to falsehoods before the court, her intervention is, on a personal level, deeply affirming.
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It is heartening to see the Prosecutor-General, herself a former judge, openly concede that the judiciary was negating the very constitutional order they are sworn to defend.
The Constitution could not be clearer. Pre-trial detention was never intended as punishment. Its sole purpose is to secure an accused person’s attendance at trial, and then only where there is a demonstrable risk that justice would otherwise be compromised.
Section 49 of the Constitution, entrenched in the Declaration of Rights, guarantees every person the right to personal liberty, including the right “not to be detained without trial”.
Justice Matanda Moyo’s memo confirms that 5 970 suspects are currently being held without trial. Others, including Madzibaba Veshanduko (born Godfrey Karembera), have now spent three months in custody without trial and without bail.
During my time at Harare Remand Prison, I shared a cell with about 10 individuals facing murder charges. All were eventually released on free bail, after spending two years in pre-trial detention.Four others were acquitted after spending six months on armed robbery allegations, while another, who endured a year-and-a-half on remand, was acquitted at the close of the State’s case.
Sections 50 and 70 of the Constitution provide further safeguards, clearly demonstrating how highly Zimbabweans value personal liberty, indeed to the point of what might be called constitutional “over-legislation”.
Yet despite this elaborate legal architecture, courts have repeatedly found reasons to keep accused persons incarcerated, often with scant regard for the rules and standards governing the denial of bail.
If the law were faithfully applied, there would be no need for the Prosecutor-General to issue guidance to officers of the court.
Prosecutors are expected to exercise independent judgment, grounded in law. Section 50(d) is explicit: an accused person “must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention”.
That clarity should not require a memo from the Prosecutor-General on how the state prosecutors should treat bail applicants. As officers of the court, they ought to know, bail is a basic right as provided for by the laws.
Matanda-Moyo is nevertheless correct to restate the law, stating, perhaps pointedly, that prosecutors, who aggressively oppose bail, do so in full knowledge that they are violating the very legal framework they purport to enforce.
“Generally, it is undesirable for an unconvicted person to be denied his or her liberty except in exceptional circumstances (Section 49 of the Constitution as read with Section 70(1) (9) of the Constitution of Zimbabwe Amendment (20) Act 2013). Also, see Section 115C of the Criminal Procedure and Evidence Act,” she wrote.
What is troubling, however, is the apparent trigger for this sudden concern. The memo suggests that the alarm has been sounded not primarily because of constitutional violations, but because prisons are now buckling under the weight of overcrowding.
The instruction, which follows that accused persons facing “petty offences” must be admitted to bail raises profound constitutional questions.
“All accused remanded in custody, facing petty offenses, must be admitted to bail on appropriate conditions. Prosecutors must make use of the fast-track courts in urgently dealing with all non-complex cases where the accused is likely to receive a non-custodial sentence,” Matanda-Moyo stated.
This distinction is deeply problematic. The Constitution does not parcel out liberty based on the seriousness of an offence.
Section 70(1) applies to any accused person, guaranteeing the presumption of innocence until proven guilty. The gravity of a charge, standing alone, has never been sufficient grounds to deny bail.
Zimbabwean jurisprudence has long affirmed this principle, most notably in Morgan Tsvangirai and Others v State, where bail was granted despite charges as grave as treason.
By implicitly categorising some crimes as more “deserving” of bail than others, the memo risks undermining a settled legal position: that each bail application must be determined on its own merits.
The courts have consistently emphasised the need to consider each bail application on its merits, taking into account various factors, including the rights of the accused, the presumption of innocence, and the specific circumstances surrounding each case.
More disturbing still is what the memo reveals about the judiciary. It suggests a bench that has abdicated its constitutional duty, merely rubber-stamping State opposition to bail.
Yet the legal standard is well established. In State v Shoshera, then Bulawayo High Court judge Justice Martin Makonese made it clear that the State must do more than make bold assertions.
“It is not sufficient for the state to make bold assertions that particular grounds for refusing bail exist. The assertions made by the state must be well-grounded on the facts,” Makonese held.
“Simply alleging that the accused may abscond, that the matter is serious, and that the accused may endanger the public or will interfere with witnesses without substantiating such allegations does not meet the threshold of compelling reasons for the denial of bail.”
The law, then, is not in doubt. What the memo exposes is an institutional failure to apply it. That the Prosecutor-General now feels compelled to intervene, effectively to restrain her own prosecutors because courts are allegedly granting bail too readily in “petty” cases, makes for unsettling reading.
Conclusion
The Prosecutor-General’s memo is both a wake-up call and a mirror held up to a justice system in distress.
It lays bare a culture in which pre-trial detention has quietly mutated into punishment, in defiance of constitutional guarantees.
Reform is no longer optional. The right to liberty belongs to all accused persons, regardless of the charges they face, and must be defended with consistency and courage.
Upholding bail is not administrative convenience, but it is constitutional fidelity. Ensuring that no one is punished merely for being accused is not only a legal duty, it is a moral imperative at the heart of any society that dares to call itself just.
In my next article, I will examine the chronic delays in concluding trials, which condemn accused persons to prolonged suffering on remand for reasons that are often unjustifiable.
Blessed Mhlanga is a law student at the University of Zimbabwe and the AMH digital editor.