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All eyes on the Zimbabwe judicial system after wanton arrests

by Staff reporter
20 Jan 2019 at 09:29hrs | Views
During the past week, there has been a hive of activity at police stations and courts around the country, following events surrounding the three-day stay-away.

This current state of affairs is a litmus test for the judicial system given the commitment by the Judicial Service Commission (JSC) to provide "world class justice".

The Constitution of Zimbabwe provides a foundation for independence of the judiciary, establishes an "independent" prosecuting authority and lays the foundation for an efficient and effective police service. It delineates the roles of justice sector players and how they should interface with other organs of the state.

More importantly, the Constitution outlines the role of the military in civilian affairs and sets out the circumstances in which the army can assist the police in the maintenance of public order.

Events of the last week show nothing much has changed from the situation which prevailed before the events of November 2017.

The austerity for prosperity measures by, Finance and Economic Development minister Mthuli Ncube, coupled with the arbitrary increase in fuel prices have resulted in untold suffering for ordinary Zimbabweans who are now unable to access the most basic of commodities.

In a series of co-ordinated attacks against civilians, the police, army and youth militia have beaten, tortured and maimed hundreds of people, including women and children.

At least 10 people have lost their lives after being shot in cold blood by soldiers while one person was run over by a military truck driving at high speed. Another person died after inhaling teargas which was indiscriminately thrown by the police in a residential area.

In the dead of night, more than 466 people were arrested and detained in police holding cells. Some were detained at other detention facilities, including military detention barracks. Two cases were heard by the Mutare High Court concerning some residents who had been detained by the army.

For those detained at police stations, one would expect them to be afforded their pre-trial rights such as accessing lawyers, doctors, and food as provided in the Constitution, but the unfolding of events from January 14 2019 shows that old habits die hard.

None of the arrested persons were afforded the protections due to them in terms of the Constitution.

On being taken to court, they were not given an opportunity to adequately prepare their defence as required by law.

In most cases handled at across the country from Goromonzi, Harare, Mbare and Bulawayo among other areas, bail, which is a fundamental right, has been denied, despite the clear constitutional provisions stating that it can only be denied in compelling circumstances.

Accused persons' lawyers were not given copies of the state outline which summaries the case against them, nor were they advised of the witnesses and evidence against them.

Marathon trials are the order of the day across the country's courts, and defence lawyers are not being given an opportunity to meaningfully prepare for a defence.

This pattern of fast-tracking trials is replicated in courtrooms across the country, prejudicing the arrested persons and making nonsense of the presumption of innocence which should be the cornerstone of our criminal justice system.

In fact, the entry of the army into the justice delivery sector appears to have taken away the few rights that Zimbabweans had enjoyed since the coming into effect of the "new" constitution.

In Harare, in a case being heard by provincial magistrate Elisha Singano, defence lawyers representing 14 Hatcliffe residents, sought to apply for bail, but the magistrate postponed the application to the following day citing that there was no longer time to hear and determine the petition. On Thursday, defence lawyers filed the bail application, but it was denied on some injudicious grounds and filed an appeal to the High Court, but again the court dismissed the appeal and ordered that trial proceedings commence immediately.

Defence lawyers even informed the magistrate that they had not been favoured with state papers which they had just been given only a few minutes before the court sat.

However, the court stated that defence lawyers could have interviewed the accused persons in the holding cells or at night, in response the lawyers told them that they had no adequate time to do so.

Defence lawyers then asked for a postponement of court proceedings to enable them to get the prescribed record of proceedings and to file it with the High Court for purposes of the bail application as well as to prepare for trial and also indicated that they had other matters set for the High Court in which they were attending to, but the magistrate only gave the lawyers inadequate time to prepare for the trial.

Lawyers argued that in terms of section 70 of the constitution, for them to be given state papers a few minutes before commencement of trial and to be stampeded into trial was a serious violation of the accused persons' rights.

The legal practioners argued that they expected the judiciary to uphold the interests of the accused persons in terms of the constitution but that was not the case because the accused persons from whom they must take adequate and proper instructions and to carry out their own investigations pertaining to their defences, including going to interview their potential witnesses because most of them were giving alibis as defences.

In this case, the time that lawyers were given in order to prepare for the trial was not adequate and they fear that the person who suffers the most is the accused person.

In a case heard before Goromonzi magistrate Feresi Chakanyuka, the pre-trial incarceration involved the military which directed the police on what to do. The comfort that is normally afforded by appearance in court was not there. The magistrate started off by denying the defence lawyer audience on the basis that the lawyer had a 2018 practicing certificate. This is despite the well-known fact that the Law Society of Zimbabwe, which is the regulatory authority for lawyers, gives a grace period of up to the end January.

Having denied the accused persons the right to legal representation by a lawyer of their choice, the magistrate refused to entertain a bail application on the basis that the matter would proceed to trial. This was despite the fact that the accused persons had not been given all the necessary trial papers which would have enabled him to prepare their defences.

The arrival of another lawyer who insisted on being heard on the bail application changed nothing as bail was denied and the magistrate insisted on a trial.

At Mbare Magistrates Court, nearly all magistrates, who presided over accused persons including magistrate Stanford Mambaje, followed the seemingly choreographed procedure of refusing to hear bail applications and insisting on immediate trials in breach of constitutional rights that magistrates had routinely adhered to before the stayaway trials.

Feisty human lawyer Beatrice Mtetwa expressed concern that the trials of the alleged protesters was being conducted in a pre-determined manner.

"There can be no doubt that the trials are being conducted in a pre-determined co-ordinated approach between the police, prosecution and magistracy. It would be stretching coincidence a bit far to believe that magistrates across the breadth of the country, who had followed to the letter provisions of pre-trial rights before the stayaway trials, would suddenly abandon tried and tested procedures all at the same time in exactly the same manner. As a lawyer, I feel complicit in that I appear to be sanitising clear violations of the law by appearing in pre-determined trials. The JSC should be ashamed of these trials which do not meet requirements even under the free justice," said Mtetwa.

Whilst the actions of those who looted and burnt private property ought to be condemned, judges and prosecutors should be reminded that Zimbabwe is under a new constitutional dispensation in which the rights of all people should be respected.

Source - the standard

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