The Sunday Mail
Tichawana Nyahuma
Legal Matters
Once I had a discussion with a senior prisons officer who remarked that everyone — including foreigners visiting Zimbabwe — who is aged 14 and above is a potential prison inmate with the exception of the President.
The long and short of it was that every adult person has capacity to commit crime and, therefore, likely to be incarcerated in the event of a trial that results in a conviction.
All persons in the hands of the Zimbabwe Prisons & Correctional Services are there for one of two reasons. It is either they are on remand awaiting trial, or they are serving sentences.
But what is the procedure that must first ensue before a person is put behind bars?
It all begins with a police report that either a crime is about to be committed or has already been committed. The alleged perpetrator may be a known or unknown. Whichever way, the police have to investigate the report.
Depending on how investigations pan out, the person alleged to have committed the offence if already known and if he can be found, is arrested and must be immediately informed of the reason for the arrest.
At that stage, he is only a suspect. The term “suspect” stems from the fact that investigations will still be in progress.
I have to stress that at no stage are the police permitted by law to assault or subject the suspect to any form of torture or inhuman treatment in an effort to punish or cause him to confess to the crime or for any other reason. Self-defence, though, is allowed if the suspect turns violent but even then, the police must use minimum force sufficient to subdue their man.
Anyone assaulted or tortured by the police has the right to make a report at that station or, if the authorities there do not co-operate, ask their relative or lawyer to make the report at any other police station.
Persons held by police are very often frightened to report the police to the police. It sounds unthinkable or even nonsensical but it is actually possible. The report can be made even after the person has appeared in court.
If upon completion of the investigations, the police are satisfied that the suspect has no case to answer, they will release him without charge.
However, if evidence later emerges linking that person to the offence, he will be re-arrested.
In cases where the police believe that a crime was committed, and it being classed as a minor offence and the suspect freely and voluntarily admits to the charge, he will be asked to sign an admission of guilt form and pay the appropriate fine.
The police do not have the power or authority to force anyone to admit to any charge. The suspect must freely do so.
As of now, the police can only fine anyone up to US$20. Any person accused of having committed an offence that attracts a fine in excess of US$20 has to be taken to court.
If the police are of the view that the offence is serious, they will charge the suspect, meaning he is officially informed that he has infringed a law and shall be brought before a court to answer to the charges.
A docket with all the details of the offence is compiled and sent to the public prosecutor for his consideration.
The public prosecutor is empowered – after taking into account all the circumstances, reading any relevant documents, and interviewing the complainant and witnesses – to use his discretion to decide whether or not to prosecute.
If he is of the view that there is insufficient evidence for a conviction, he may decline to prosecute. The complainant or any person aggrieved by that decision, and who has direct and substantial interest in the matter, can apply for a certificate authorising the appointment of a private prosecutor and the case can proceed to court.
The other option for the public prosecutor if he is of the view that the evidence in the docket is malnourished is to order it sent back to the police so that they beef it up by gathering more evidence or locating other witnesses to buttress the case.
During all these processes, the police and the prosecution race against time because they are not permitted to detain or keep in their custody a suspect/accused person for more than 48 hours since the arrest or detention even if the period ends on a weekend or public holiday.
This is why our courts now open on weekends and public holidays.
During the period the suspect/accused is in the hands of the police, he has legal rights given to him by the Constitution.
The first is what I have already explained — he has to be informed at the time of arrest or detention of the reason for the arrest.
Once that is done, the police must allow the person to contact his relatives, lawyer or anyone of his choice. That communication will be at the expense of the State.
If needs be, the accused must be allowed to consult a doctor of his choice and to confer with him in private. The accused bears his own doctor’s costs. In addition, the accused also has a right to communicate with his chosen religious counsellor.
At all times, the accused person must be treated humanely and with due respect.
The accused also has a right not to say anything to the police or the court with respect to the charges he is facing, the so-called right to remain silent. But this has its consequences, which is that the court can draw adverse inferences.
If the 48-hour period should lapse before the police and/or the prosecutor have completed all the pre-requisites necessary before the accused is brought to court, they are obliged to release him there and then as any further detention would be unlawful.
Further detention of the arrested person can only continue if the police/prosecutor successfully apply to a court for such authority.
Assuming that all is in order, the accused will be brought before a court of law, usually the Magistrates’ Courts.
One of the questions that arise at this stage is if the accused has any complaints against the police. I have often seen accused persons who have evidently been assaulted whilst in police custody lying to the court that they do not have any complaints.
The reason they do so is that once they raise complaints, the court remands them in custody pending attendance by a Government medical practitioner. It seems courts do this as a rule of practice rather than rule of law.
I can see a legal gap there which needs to be filled so that it is made crystal clear that an accused who qualifies for bail but who has a complaint against the police can still be released on bail, and then be seen by the Government doctor from the comfort of his home.
Once the above hurdle is overcome, the prosecutor puts the charges to the accused.
If the accused admits to the charges, ie he pleads guilty, the prosecutor addresses the court in aggravation. Aggravation refers to those factors relating to how the offence was committed and other personal circumstances of the accused person that will strengthen the case against him in an effort to persuade the magistrate to impose a stiff penalty.
Thereafter, the accused through himself or his legal representative, addresses the court in mitigation, which is the opposite of aggravation. The court then weighs the two arguments on the scales of justice and imposes an appropriate penalty.
If, however, the accused rejects the charges, the matter assumes an altogether different colour.
The question if the trial ought to proceed while the accused is on bail or in custody arises. According to the Constitution, any person “has the right at the first court appearance after being arrested, to be charged or to be informed of the reason why their detention should continue or to be released”.
This statement refers to bail and what is meant is that as soon as the charges are put to the accused and he pleads not guilty, he is released unless it is shown there are compelling reasons why he should not be freed on bail.
This is unlike the previous position where it was the accused who had to show to the court that he was a good candidate for bail.
When a person is said to have been remanded in custody, it means he is handed to the Zimbabwe Prisons & Correctional Services, if you want, “for safe keeping” until the trial is completed.
With respect to serious offences like murder, rape, treason, armed robbery and the like, which are listed in the Third Schedule of the Criminal Procedure & Evidence Act, I am afraid our law is structured in a clumsy fashion.
To begin with, the Magistrates’ Courts have no power to grant bail in Third Schedule offences and the accused has to make the bail application at the High Court.
In my view, this is legally untenable for the reason that the same court is the one that has jurisdiction to handle the trial.
Surely if the Magistrates’ Courts can try a rape or attempted murder suspect, it should also be clothed with the power to decide whether or not the suspect should be granted bail.
As for murder, treason, possession of dangerous weapons and others of their ilk, it beats me why the suspects are first brought before a magistrate when that court can neither grant bail nor handle the trial.
In my view, suspects in such cases must never appear in the Magistrates’ Courts because at all times, they belong in the High Court.
What is more rational is to authorise the Magistrates’ Courts to consider bail for Third Schedule offences, never mind which court the trial will eventually take place.
That, in my view, is the legally smarter approach as it does not unnecessarily inconvenience accused persons, particularly if the accused hails from places that are far away from Bulawayo and Harare where the High Court sits for the bail applications.
Anyway, once the bail issue is disposed of, the trial proceeds and the accused is found guilty or not guilty.
If the verdict is not guilty (acquittal), the accused walk frees and that marks the end of the matter unless the prosecutor decides to appeal against the decision.
On the other hand, if the court finds the accused guilty, that is to say if he is convicted, there follow mitigation and aggravation after which an appropriate penalty is imposed.
That could be a warning, fine, community service or a custodial sentence, which means the person will be imprisoned.
The accused retains his right of appeal — but only if there are good grounds for doing so.
Tichawana Nyahuma is a lawyer and writes in his personal capacity. Feedback: [email protected]
