ZLHR lawyers call for safeguard of right to liberty

ZIMBABWE Lawyers for Human Rights (ZLHR) has called on the legislature to harmonise section 121 (3) of the Criminal Procedure and Evidence Act (CPEA) with the provisions relating to the pre-trial rights of those detained or accused of criminal offences as provided in the Constitution.

ZLHR Communications officer Kumbirai Mafunda said Section 121 (3) of the CPEA - has been repeatedly abused by prosecutors from the National Prosecuting Authority (NPA) over the years to veto bail orders granted by judicial officers, distorting the concept of separation of powers as envisaged in any democratic society by undermining the authority of the judiciary to make rulings and decisions that advance the best interests of justice and the rights to personal liberty, rights of arrested and detained persons.

"On Wednesday 23 September 2015, the full bench of the Constitutional Court, led by Chief Justice Godfrey Chidyausiku made a ruling declaring the notorious section 121 (3) of the CPEA to be unconstitutional and against the letter and spirit of provisions on the right to liberty (as provided in section 13 (1) and section 18 (1) of the former Lancaster House Constitution of Zimbabwe)" said Mafunda.

"The declaration by Chief Justice Chidyausiku came after Fanuel Kamurendo, petitioned the Constitutional Court in 2014 protesting against the violation of his fundamental right to liberty. In his application, Kamurendo argued that section 121 (3) of the CPEA is repugnant, undemocratic and open to plain abuse by some overzealous prosecutors. Kamurendo's challenge of the controversial legal provision came after prosecutors invoked section 121 (3) of the CPEA to veto his bail order when he appeared in court after being arrested and charged."

Mafunda said following this ruling, ZLHR has been and will continue to monitor whether this provision of the CPEA will continue to be applied at all in future cases.

"The Constitutional Court's decision is a positive development on the country's legal landscape, and advances the right to liberty of anyone who is accused of a criminal offence, and has been deemed to qualify for bail by those presiding over the courts," said Mafunda.

"While this infamous law had attracted notoriety and controversy, since 2008 ZLHR noted that in almost all cases where section 121 (3) of the CPEA had been invoked, the prosecution either abandoned the appeal or lost the appeal in the higher court on the basis that the appeal lacked merit."

He said furthermore, section 121 (3) of the CPEA was mostly invoked in cases involving charges of a politically-related character and also cases invariably involving human rights defenders.

"Because the NPA was not, in terms of that law, compelled to provide reasons for its prosecutors' decisions to invoke the provision, it effectively meant therefore that such a provision and its invocation rendered the judicial officer and his or her findings irrelevant hence it was an assault and an affront on the independence of the judiciary," Mafunda said.

"While, Parliament is currently considering the CPEA, ZLHR remains concerned that there is no provision in the Bill to amend section 121 (3) to remove the possibility of arbitrary deprivation of liberty by the NPA."

He said therefore ZLHR calls on Parliament to repeal section 121 (3) of the CPEA as it allows prosecutors to arbitrarily deprive persons of liberty for seven days by merely advising a judicial officer of an intention to appeal against bail granted.

" ZLHR calls upon the NPA to embrace the United Nations Basic Principles on the Role of Prosecutors and the African Union Guidelines on the Right to Fair Trial and Legal Assistance in Africa as useful guidelines on the role and responsibilities of prosecutors," said Mafunda.