Bail-denying Section 121 (3) scrapped

THE government has finally agreed to scrap Section 121 (3) of the Criminal Procedure and Evidence Amendment Bill that the National Prosecuting Authority or public prosecutors have been using to deny suspects bail despite being deemed proper candidates by the courts.

The prosecuting authority has been invoking Section 121 to nullify the granting of bail to an accused person ostensibly to launch an appeal against the admittance to bail for a further seven days.

However, the Bill had reduced the time-frame from seven days to 72 hours.

But in its submissions, the Parliamentary Legal Committee (PLC) said the condition still violated the Constitution.

The PLC is responsible for determining whether a Bill if passed into law would not contravene the declaration of rights or any section of the Constitution.

Ziyambi Ziyambi, who is a member of the PLC, on Wednesday presented the findings of the committee where they said if passed into law the Bill would contravene the Constitution.

"Section 121 (3) has not changed, as it provides that a magistrate or judge's decision to admit an accused person to bail shall be suspended if, immediately after the decision, the magistrate or judge is notified that the Prosecutor-General or public prosecutor wishes to appeal against the decision," concluded the committee.

"The mere difference is that an accused person shall now remain in custody despite being found to be a proper candidate for bail, for a further 72 hours as opposed to the seven days. "The controversy surrounding this provision is the suspension of the court's order to admit an accused person to bail upon prosecution notifying the court of its intention to appeal against such an order.

"It's clear that the provision creates inequality of arms and tilts the scale of justice unfairly to the prosecution side at the expense of the accused."

The committee added that the tenets of the Constitution with regards to the presumption of innocence also required that pre-trial detention should not constitute punishment.

Some legislators who debated the motion said as a result, there was a conflict between the executive and the judiciary.

Vice President Emmerson Mnangagwa who oversees the Ministry of Justice, Legal and Parliamentary Affairs, said the government agreed with the committee's findings.

"In the Ministry of Justice after reading the submissions by the Parliamentary Legal Committee, we have conceded to the observations in that report and we have communicated that to the committee that there is no dispute," he said.

"I'm surprised that some honourable members say there is a conflict between the judiciary and the executive. There is no conflict, the Prosecutor-General conceded and allowed issuance of private prosecution and its going on now. So accordingly, Section 121 of the Criminal Procedure and Evidence Act should be amended by deletion of Sub Section three…We therefore say we accept the recommendation of the Parliamentary Legal Committee."

MDC-T legislator, Advocate Nelson Chamisa, welcomed the decision by the government to scrap Section 121 (3) of the Bill saying it was a progressive decision.

"This is a very positive development when you find that the executive is willing to listen to the wisdom and logic of the legal committee.

"We must commend good things. This is what gives Parliament its positive role in a democratic society. We are now enacting good laws for good citizens. We hope that this spirit continues. We don't expect it to be a short race, let it be a marathon.

"Thank you very much Vice President, may you continue to open your gates to the wisdom of legislators," said Adv Chamisa.

The Constitutional Court has since ruled that the section should be removed from the statutes.