Jestina Mukoko: What's the Law got to do with it?

By Alex Magaisa
For the last six months, I have been closely following the matter of Jestina Mukoko and other activists who spent months in prison before being released in early March 2009. Others like Gandhi Mudzingwa, Chris Dlamini and Anderson Manyere have remained in custody since December 2008 despite being granted bail by the High Court.

All detainees are alleged to have been tortured and subjected to inhumane and degrading treatment by their captors. All this is happening in a country that claims to be rehabilitated and in need of assistance to kick-start a comatose economy.

On Tuesday May 5, 2009, Zimbabweans and the world at large were shocked to read that Mukoko and 17 others had been re-detained following proceedings at the Magistrates' Court in Harare.

The next day, however, 15 of the 18 detainees were released, the Attorney-General having finally consented to their bail applications.

Many people have asked, in the aftermath of this episode, what really is going on? Some have criticised the magistrate for her ruling to send the detainees to prison. Many others are plainly confused and disappointed at the turn of events.

Now, I am not a criminal lawyer but I like to think I can still read criminal legislation in the context of our political situation. I am interested to discover if this really has anything to do with the law.

This, here, is my attempt to shed light on what happened; why it may well have been within the law but is nevertheless ridiculous, given the national interest at stake in the overall scheme of things.

I will attempt as much as possible to put the language in layperson's terms, although this is at the risk of oversimplifying it, something that might disappoint my colleagues in the law.

I understand that the basis upon which Magistrate Catherine Chimhanda made her decision to re-detain Mukoko and others is Section 66 of the Criminal Procedure and Evidence Act [Cap 8:07].

This section provides for the procedure for bringing an accused person to trial before the High Court.

This simplified procedure, commonly known as the "direct indict" procedure is a departure from an older procedure which required a "preparatory examination" in the magistrates' Court before indicting the accused person in the High Court for trial. The types of offences that are tried by the High Court are called "indictable offences".

The reason for the preparatory examination was to scrutinise the evidence to determine whether the accused should be in the High Court. The trouble with this procedure was that it was time-consuming and costly both for the state and the accused.

I understand the law was changed in 1962 to allow for the "direct indict" procedure as an alternative in straight-forward case, so that a preparatory examination was not necessary.

Over time, this simpler procedure became the norm and in 2006, a new amendment produced the present Section 66, which is now under consideration as the basis upon which Mukoko and others were sent to prison for the night of May 5 2009.

Subsection 1 of this provision states that: "If the Attorney-General is of the opinion that any person is under reasonable suspicion of having committed an offence for which the person may be tried in the High Court, the Attorney-General shall cause written notice to be served on-(a) a magistrate for the province within which the person concerned resides or for the time being is present; or (b) any magistrate before whom the trial of the offence could be held in respect of the offence concerned; informing the magistrate of his or her decision to indict the person
concerned for trial before the High Court and of the offence for which the
person is to be tried".

I have underlined the key words for emphasis. Essentially, therefore, all the Attorney-General needs to do is to issue a written notice to the magistrate merely informing her that he has made the decision to indict, i.e. to formally accuse a person for trial at the High Court. The AG must of course state the offence.

It is worth noting here that the AG is not asking the magistrate for permission to do so. He is not placing evidence before the magistrate - he is merely "informing" her of his decision and of the offence. What then does the magistrate do? This requires us to look at the next provision.

Subsection 2 then states:

"On receipt of a notice in terms of subsection (1), the magistrate shall cause the person concerned to be brought before him or her and, notwithstanding any other provision of this Act, shall forthwith commit the person for trial before the High Court and grant a warrant to commit him or her to prison, there to be detained till brought to trial before the High Court for the offence specified in the warrant or till admitted to bail or liberated in the course of law."

This means that once the magistrate has received the notice from the AG, she is required to call the accused person to be brought before her court, as happened to Mukoko and others when they came to court on May 5.It is important to note that the provision uses peremptory language, i.e. the magistrate "shall forthwith" commit the accused person for trial before the High Court and also grant a warrant to commit the accused person to prison, where the accused person shall be "detained" until brought to trial or until "admitted to bail or liberated in the course of law".

This strong language shows that, once the notice has been issued by the AG, the matter is by and large beyond the magistrate's control until such time that the accused applies for bail. All that it took was for the AG to issue the notice to the magistrate, as he did on May 4, 2009.

Effectively it is the word of the AG, through that notice to cause the accused persons to be sent to prison as the magistrate does not seem to have any discretion on this - under the provision, she has to grant a warrant for the accused committal to prison.

Under the provisions quoted above, the magistrate has little, if any, power to question the nature and quality of evidence that the AG uses to indict the accused person.

That explains why Mukoko's lawyers did not challenge the legality of what she has done but instead sought to ask for evidence of the political decisions behind the March bail to be heard.

The irony here is that it is the political decisions that probably caused the AG to issue the notice that has led to the re-detention of the activists. The magistrate's position would not have changed for the simple reason that she does not have the power, unless she was considering a bail application.

For the avoidance of doubt, it is important to note that the AG could have done what he did even on the day that Mukoko and others were released in early March. He could have done it a day later, two days later, indeed any day after their release.

What then has changed? Has the State suddenly got enough evidence to give them reasonable suspicion that the accused committed the alleged offences? Perhaps. But there could be another motive, which has little to do with the law.

That the AG chose to do so on May 4, 2009 has to be considered within the context of the on-going political negotiations, which have probably hit a sticky patch.

We must also consider another relevant aspect. This is not the first time that the AG has issued a notice of this nature - indeed, as I have said it is the norm in most cases.

However, my understanding is that as a matter of practice the norm is for arrangements for bail to be made where necessary so that in this case, when the AG issued the notice, he could have stated that he would not oppose bail.

The lawyers for Mukoko and others could therefore have applied for bail, which if she had the power, the magistrate could have dealt with. That means Mukoko and others would have been spared the ordeal of jail. So why was consent delayed until a day later?

Did it suddenly dawn on the AG that it made no sense to lock away accused persons who were on bail, which bail they had not breached? Or was there a bigger, invisible hand that caused him to see reason?

There might be an argument that there is something wrong with the law which allows the AG to do as he did in this case because it is prone to abuse.That may well be true. The justice system is predicated on the basis that the officers of the law, the AG included, will uphold the Constitution and behave in a civilised manner.

It is expected that the AG will be fair, reasonable and use the powers given to him in lawful manner, i.e. that there will be no abuse of powers.That is why there have been no similar problems as this in the past. But this system is too dependent on the character of the office holder.

Someone could be vindictive and unreasonable and refuse to consent to bail, thereby consigning the accused to prison for a lengthy period of time. The presumptions are misplaced in today's Zimbabwe.There was no reason for Mukoko and others to be sent to prison even for a day.

The AG could have issued the indictment notice and indicated that he would not oppose bail. That would have been a reasonable and sensible use of the powers.

The accused have not breached their bail conditions (at least there is no allegation that they have). Given the seriousness of the charges they are facing, one might have thought they would do a runner, especially having been unlawfully captured and subjected to inhumane and degrading treatment during that initial detention. They did no such thing.

Cynics will be forgiven for holding on to the view that the cases were always politically-motivated. They have been resurrected in part due to the challenges of the current negotiations on "outstanding matters" from the Global Political Agreement (GPA). As always the law is no more than a veil to earn legitimacy.

Soon, the justifications of the rule of law will be heard from those pulling the strings. The only problem with the law as presently stated is that it is prone to abuse but a reasonable AG can still conduct him/herself without causing undue hardship to accused persons.

The Magistrate did nothing wrong - she had little power to order their release in the absence of a bail application and the consent of the AG. If the AG had opposed bail and she agreed with his reasoning then there would be cause to be more critical of her. In the end the matter was resolved because the root of the problem, at the AG's office solved it by consenting to bail. Why did it not happen on the first day? The problem is simple.

It is that those charged with power saw it fit to tighten the vice-grip on the cojones of Messers Morgan Tsvangirai, Arthur Mutambara, et al. These poor souls detained were the pawns. It's crazy. It's ridiculous. I had wanted to believe very strongly that there is something beautiful that can be salvaged from this political hybrid of a government.

But with each passing day, even my own optimism, which, I must admit can seem overly naively eternal, has taken a huge knock. Why do we always shoot ourselves in the foot? Are we surely incapable of doing the right thing? And above all, how do they, those who do these things, how do they sleep at night, if at all?