Tungamirai Madzokere and 28 Others v The State

### Preamble
1
HH 256-12
B 199/12
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TUNGAMIRAI MADZOKERE

LAST MAENGEHAMA

LAZARUS MAENGEHAMA

STANFORD MAENGEHAMA

GABRIEL SHUMBA

PHINIEAS NHATARIKWA

STEFANI TAKAIDZWA

STANFORD MAGURO

YVONNE MUSARURWA

REBECCA MAFUKENI

SYNTHIA FUNGAI MANJORO

LINDA MUSIYAMHANJE

TAFADZWA BILLIAT

SIMON MUDIMU

DUBE ZWELIBANZE

SIMON MAPANZURE

EDWIN MUINGIRI

AUGUSTINE TENGANYIKA

FRANCIS VAMBAI

NYAMADZAWO GAPARE

KURINA GWESHE

MEMORY NCUBE

LOVEMORE TARUVINGA MAGAYA

ODDREY SYDNEY CHIROMBE

ABINA RUTSITO

TENDAI MAXWELL CHINYAMA

JEPHIAS MOYO

SOLOMON MADZORE

PAUL NGANEROPA RUKANDA

versus

THE STATE

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE  5  June 2012 and 19 June 2012.

ASSESSORS: 	1.	Mr. Msengezi.

2.	Mr.	Mhandu

Mr. E Nyazamba and Mr. P Mpofu, for the State.

Mr. Kwaramba and Mr. Hwacha, for the 1st to 26th accused.

Mr. Mutisi and Mr. Zhuwarara, for the 27th to 29th Accused.

Bail Application

BHUNU J: The 29 accused persons are in custody on allegations of murdering a law enforcement officer in the course of duty as defined in s 47 of the Criminal Law (Codification and Reform) Act  [Cap  9:23] alternatively public violence as defined in s 36 of the Act. They are alleged to have killed a police officer on duty in the course of politically motivated violence. Their trial is currently under way but they have all been remanded in custody by operation of law.

Section 117 (6) of the Criminal Procedure and Evidence Act requires that an accused person alleged to have killed a law enforcement officer in the course of duty be detained in custody until he or she has been dealt with in accordance with the law unless the accused having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge that exceptional circumstances exist which in the interest of justice permit his or her release.

Clearly, the Law maker, that is to say Parliament, in its wisdom has placed a heavy onus on an accused alleged to have killed a law enforcement officer in the course of duty to establish the existence of special circumstances entitling him or her to bail. In a bid to afford the accused persons a chance to discharge the heavy onus reposed upon them by law I have previously twice held in abeyance the determination of this bail application in order to do justice according to law.

There has been however, an unfortunate development in this trial in that one of the defence team lawyers Mr. Kwaramba instead of adducing the required evidence according to law has now decided to play to the gallery and the press in a bid to secure the release of his clients without complying with the law by demonising and attacking the dignity and integrity of this Court and the judiciary of this country in general. He is quoted in an article in the Dailynews on Sunday of June 10 at p 4 as follows:

“Human rights lawyer Charles Kwaramba, who is representing the 29 MDC activists said the law is not being applied fairly.

‘It just goes on to show that there is no equal application of the law. This is a classical example. Here we have police officers who are supposed to protect the people being accused of murdering a civilian for a dollar

‘On the other hand we have 29 civilians who have been in prison for over a year now, being accused of killing a cop. So far there is no evidence that points at them, but the speed of arrests shows that the police wanted to arrest them because they are MDC. There were no investigations when the 29 were arrested.

‘One wonders how the Shamva cops. (got) $50. bail each in a murder case while the 29 activists are failing to get the same even when there is no evidence.

Kwaramba said the moment that a person is labelled MDC justice is politicised.”

With respect Mr. Kwaramba’s remarks cannot reasonably be true. They are being made at a time when the very same police he is attacking have arrested ZANU PF activists in Mudzi for allegedly murdering an MDC member in politically motivated violence. They have since been denied bail by this very Court. See David Chimukoko and Ors v The State HH 254-12.

It is a well documented truth and our court records and law reports are replete with MDC members charged with treason or murder including its leader who owe their lives to this very Court that Mr. Kwaramba has the audacity to publicly demonize and denounce as an enemy of the MDC. This is not to mention countless others charged with various offences including fraud and insulting the President who also owe their freedom to the very judiciary that       Mr. Kwaramba seeks to demonise and portray as being partisan and biased against The MDC. See

State v Sonny Nicholas Masera H-H-50-04

S v Tsvangirai & Ors. 2003 (2) ZLR 88.

S v Tsvangirai 2004 (2) ZLR 210.

The State v Roy Leslie Bennett HH-79-10

The Attorney General v Roy Leslie Bennett SC 7/11

The State v Elton Mangoma HH136-11

Just to mention but a few.

This Court’s mission is to dispense world class justice to all manner of people without fear or favour. Right now as I speak the MDC President is busy defending in the Supreme Court this Court’s landmark judgment issued in his favour against his arch rival the President of ZANU PF and Zimbabwe.

That puts to shame Mr. Kwaramba’s ill conceived malicious remarks in the press bent on bringing the due administration of justice into disrepute.

Mr. Kwaramba deliberately misrepresented the facts and the law to mislead gullible members of the public and the press when he launched that caustic inflammatory but baseless attack on the bench and the judiciary in general. The simple answer to his insincere rhetoric question is that Parliament has decreed that where a person is alleged to have killed a law enforcement officer and in this case a policeman, the Court is prohibited from granting the accused bail until such time he or she has adduced evidence to the Court’s satisfaction establishing the existence of special circumstances justifying his release. The same considerations do not apply to a person or police officer who is alleged to have killed any person other than in circumstances falling under s 117 (6) of the Act.

The Shamva police officers were not subject to the prohibition in s 117 (6) simply because they were not alleged to have killed a law enforcement officer in the course of duty or any of the circumstances envisaged by s 117 (6) of the Act. Had they been alleged to have killed a law enforcement officer, they would certainly have been hit by the section.

Admittedly the law discriminates in this respect but the problem if any, is not that of application or interpretation but promulgation of the law by Parliament. If Mr. Kwaramba has any problem with s 117 (6), he should lay the blame at the door of Parliament and not the courts or the judiciary. Every lawyer worth his salt knows that laws are crafted and made in Parliament and not the courts. The courts simply have to interpret apply and enforce the law. It is not the business of the court to change the law in order to avoid hardship on the part of his clients for to do so will be to act illegally.

In his demonization of the judiciary Mr. Kwaramba was well aware that the Shamva case was different from this case. This explains why in all his lengthy addresses and submissions in open court he never mentioned the Shamva case or sought to draw any similarities between the two or any other case because he knew that they were different and that different legal considerations applied.

In judgment Number HH 182/12 I took the trouble to draw his attention to s 117 (6) and to explain its legal implications to his apparent satisfaction such that he abandoned his ill conceived bid to appeal against my order inviting him to comply with the legal requirements prescribed by law. Having failed to take refuge in the Supreme Court he now seeks solace in the media and gullible members of the public together with some obscure self styled, shallow minded if not bogus lawyers whom I have never encountered at the courts in my 31 years in the judiciary.

For him to then turn around, attack and denigrate this Court on the basis of a case reference and arguments he never advanced in open court so that they could be subjected to legal scrutiny smacks of dishonest, slanderous, contemptuous and unethical conduct on his part.

The Court is however, sworn to apply the law without fear or favour. No amount of demonization or vilification of the judiciary and the courts or unethical and unprofessional conduct on the part of any legal practitioner can sway or derail this court’s endeavour to administer justice impartially without fear or favour according to the prevailing law of the land. Mr. Kwaramba cannot avoid complying with the law by whipping up biased political support from the media and some biased obscure lawyers of questionable authenticity   or by misleading members of the public as to the true position and interpretation of the law.

Fortunately the lead defence counsel Mrs. Mtetwa to her credit has remained professionally ethical and focused on her core business of defending her clients to the best of her ability without casting any aspersions on the Court or her colleagues. Admittedly she is rather aggressive, temperamental and tenacious in her presentations but she remains professional, ethical and dignified within the acceptable limits of the profession.

When I confronted all the legal practitioners involved in this case with the offending remarks of Mr. Kwaramba in my chambers she completely and earnestly dissociated herself from those remarks. She said that she had absolute confidence in the court’s ability to dispense justice impartially having regard to precedent.  I believe her.

Turning to the merits of this application for bail there is really not much to say. I have already made a determination that for the application to succeed there must be compliance with the mandatory provisions of s 117 (6) of the Act. The applicants must adduce evidence establishing that there are special circumstances justifying their release on bail. It is needless to say that no such evidence has been adduced to date.

Each accused person has now filed his or her defence outline. It is argued that the mere filing of the defence outlines amounts to the adducing of evidence. The Dictionary of English Law by Earl Jowitt 1959 defines evidence as:

“The means employed for the purpose of proving an unknown or disputed fact it is judicial or extra judicial. Judicial evidence is that which is used on trials or inquiries before Courts, judges, commissioners etc.”

The accused’s defence outlines were filed in terms of s 66 (6) (6). That section provides the purpose and import of a defence outline or summary of the defence case. It reads:

“(6)	 Where an accused has been committed for trial in terms of subs (2) there shall be served upon him or her in addition to the indictment and notice of trial—

a document containing a list of witnesses it is proposed to call at the trial and a summary of the evidence which each witness will give, sufficient to inform the accused of all the material facts upon which the State relies; and

a notice requesting the accused—

to give an outline of his or her defence, if any, to the charge; and

to supply the names of any witnesses he or she proposes to call in his or her defence together

with a summary of the evidence which each witness will give, sufficient to inform the Attorney-

General of all the material facts on which he or she relies in his or her defence; and informing the accused of the provisions of s 67(2).”

A defence outline therefore constitutes no more than a mode of propounding a brief summary of the facts upon which the accused relies in his defence. The defence outline does not constitute evidence of the facts outlined, in so far as it is not a mode of proving any unknown or disputed facts.

For instance most of the accused persons in their defence outlines sought to rely on the defence commonly known as an alibi. In simple terms that defence means that the accused was not at the scene of crime at the material time when the offence was committed. Merely stating that one was at hospital without tendering evidence such as the relevant hospital cards or affidavit from the hospital authorities can hardly amount to proof that one was at hospital at the material time when the offence was committed. The defence’s argument pales into absurdity considering that it is being made at a time when the press is awash with stories of people pleading guilty to faking medical affidavits. Thus if the accused want to succeed in their bail application they must prove to this court the existence of special circumstances to the satisfaction of this Court.

It is trite that in a trial, the state normally bears the onus of proving the accused’s guilty beyond reasonable doubt. In a case where the accused alleges that he was elsewhere at the time of the crime the onus is on the state to disprove his alibi. See S v Musakwa 1995(1) ZLR

The accused person’s dilemma in this case is however, that in a bail application under s 117 (6) the legislator has shifted the burden of proof onto the accused. He bears the onerous duty of adducing evidence establishing the existence of special circumstances justifying his or her release on bail to the satisfaction of this court. This is tantamount to asking the accused to prove his defence thereby relieving the state of the burden of proof. In the event that the accused fails to prove the validity of his defence at the bail application stage, this will obviously have an adverse effect on the outcome of the trial.

The net effect of the legal matrix in this case is that it is easier for the accused to succeed in the main trial than to get bail under s 117 (6) of the Act where the odds are heavily stacked against the accused. Adducing evidence for the sake of getting bail as is required by law may actually jeopardise the accused’s chances of success in the main trial. This apparently explains why the defence has adopted the legal strategy of refusing to adduce evidence at this stage for the purpose of getting bail. The tragedy is however that the accused cannot get bail without adducing the required evidence according to law.

I must again give credit to Mrs. Mtetwa for making an honest assessment of the defence’s legal options at this stage. Having realised the futility of wasting time trying to leap over apparently insurmountable bail application hurdles she has intelligently opted to soldier on with the main trial thereby effectively abandoning the futile bail application.

On the contrary, I chide Mr. Kwaramba who apparently being well aware that the defence has deliberately chosen a legal strategy of refraining from adducing the relevant evidence necessary for his clients’ release on bail first attempted to run to the Supreme Court seeking to evade complying with peremptory legal requirements. When he hit a dead end he made an about turn and sought to attack the court and the judiciary in the press for correctly interpreting the law. He appears to be well out of his depth and like a bad sports person attacks the referee in the vain hope of winning the game.

Everyone knows what happens when a player attacks the referee or umpire, he risks a red card. At this stage I am however, content to issue a yellow card and let this be a stern warning against any further improper conduct or misbehaviour. It is the height of folly and tactless in the extreme for defence counsel to attack the Court in the press while the trial is in progress. The adage that those who live in glass houses should not throw stones is apt.

Let me make it very clear at this juncture that this Court is not a political entity but an independent adjudicating authority that owes no allegiance to anyone.

In conclusion I must remark that I have taken this uncharacteristic step of hitting back at the defence because to protect the dignity and reputation of the Court which is being maliciously tarnished

In the result all the accused having failed to establish that there are any special circumstances entitling them to bail it is accordingly ordered:

That the application be and is hereby dismissed.

That the registrar be and is hereby directed to serve a copy of this judgment on the secretary of the law Society.

Zimbabwe Lawyers for Human Rights, 1st to 27th Applicants’ Legal Practitioners.

Musendekwa – Mutisi, the 28th to 29th Applicant’s Legal Practitioners.

The Attorney general’s office, the Respondent’s Legal Practitioners.