Jail Mamombe, throw away keys

The denial of bail to MDC-Alliance members Johana Mamombe and Cecila Chimbiri, on March 11 sparked a huge outcry from the usual quarters. Of note is that The Herald devoted merely three lines on the reason they were denied bail.

Having read the full bail ruling myself, I am of the view that unless the views of our courts are fully expressed to the public, there remains in an ordinary person's mind, a view that these criminals are being ganged against by the police, prosecutors, magistrates, Zanu-PF and the Government.

I conclude by arguing that Mamombe and Chimbiri are best locked up as they pose a danger to public order. Thereafter, jail keys should be thrown away forever.

The belong inside. Before highlighting the learned magistrates' ruling, it is perhaps pertinent to outline the classic conflicting ideas of the criminal justice system. Herbert Packer identified two models of the justice system: the first being an interest in controlling crime and that the system has an obligation to its subjects to do just that.

Secondly, it is seen as protecting an individual's rights. It is therefore important that in the system, in attempting to control crime, it does not compromise the due processes of rights. Not in public domain that Mamombe's trial can only be held at the whim of her medical team.

Mamombe got the high court to interdict a separation of trials. Mamombe has a propensity to violate public disorder. Letting her do kuda kwa Jojina undermines public confidence in the judicial system.

In the ruling by Provincial Magistrate Vongai Muchuchuti-Guwuriro, the facts of the matter were that the two accused were arraigned before the court on initial appearance.

They were facing allegations of contravening Section 5(3)(a) of the Public Health (Covid-19 Prevention, Containment and Treatment National Lockdown) Consolidating and Amendment Order of S.I.200/2020 a.r.w. SI 42/2021 Partaking or Convening a gathering.

The accused were both placed on remand resulting in them formally applying for admission to bail. The State opposed the accused's application. The prosecutor relied on two major grounds for that opposition namely that: The accused are likely to commit further offences whilst on bail.

The prosecutor indicated that the State's apprehension was buttressed by the fact that the accused are facing three other similar offences. These appear on the Harare records indicated below: 1 CRB.98-99/20. 2.CRB.5766-60/20. 3.CRB.919-20/21.

It is clear the State has overwhelming evidence linking the accused to the alleged commission of the offence. Prosecution alleged that there are witnesses who saw the accused convening the gathering in question. There is also video footage and witnesses who can testify to seeing the accused committing the offence.

Magistrates and judges are strictly guided by law and do not decide on political whim. Bail applications in Zimbabwe are a constitutional right with the advent of the Constitution of Zimbabwe, 2013.

Section 50(1) (d) provides that any person who is arrested must be released unconditionally or on reasonable conditions unless there are compelling reasons justifying their continued detention. That provision clears any lingering doubts as to what the State or the accused is expected to prove in a bail application. Besides the Constitution the Criminal Procedure and Evidence Act chapter 9:07 confirms the constitutional entitlement on bail.

The Act provides that a detained person is entitled to be released on bail at any time. However, the section gives circumstances which the court should not grant bail. The court must always lean on the side of the best interest of justice.  So it must be understood that the detention or continuous detention of the accused and two others is in the interest of justice. It is therefore, fair and just that the interest of justice be observed.

So, provincial magistrate Muchuchuti-Guwuriro took into consideration that the refusal to grant bail and the detention of an accused in custody shall be in the interests of justice and not in sync with the political mood.

In this current case the learned magistrate had to satisfy herself that there is no likelihood that the accused if he or she were released on bail, will endanger the safety of the public or any particular person or will not stand his or her trial or appear to receive sentence; or attempt to influence or intimidate witnesses or to conceal or destroy evidence; or undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system. The State in this case opposed bail and was able to prove that the accused persons were not only serial offenders but will break the law again.

The accused were in court for the umpteenth time with the replication of the same offence.

Their lawyer, Mr Jeremiah Bamu, sought to advance the argument that the offence that the accused are facing is not a first schedule offence.

This became a point of law. The learned magistrate ruled that "the First Schedule of the Criminal Code does not specify any offences as mistakenly believed by counsel for the accused".

"It is in my view, a sweeping provision that covers all offences in respect of which a punishment of a period of imprisonment exceeding six months is provided for and may be imposed without the option of a fine.

"The court was satisfied that indeed they all fall into the category described in the First Schedule. It does not mean that there must be a mandatory sentence exceeding six months' imprisonment. It simply means that the court may choose not to afford an accused the option of a fine."

The State presented a serious fear that releasing the accused will simply make a mockery of the justice system.

In deciding whether the particular apprehension feared by prosecution exists the court therefore considered whether or not the accused have any disposition to commit offences referred to in the First Schedule, as evident from their past conduct; and whether or not there is any evidence that the accused previously committed an offence referred to in the First Schedule while released on bail; It is agreed that the two accused have three other pending matters and this is in the public domain and was presented to court.

There is no previous conviction attaching to either of them.

Understandably the court was surprised that none of the cases was complete. It came out clearly that the accused persons were actively delaying the trial.

In one of the matters the first accused pleaded insanity and was declared a person with mental instability in terms of Section 27 of the Mental Health Act. She was then remanded in custody to facilitate examination for trial. The high court set aside the decision and released the accused.

The actions of the accused have literally slid the case off the hands of the State. The delay to bring all the cases to their finality is caused by the accused themselves. They simply have to wait for the recovery of the first accused for her to be able to stand trial.

The first accused is now being treated by her own private doctors and the same are required to confirm whether or not she is now ready to stand trial. The issue is out of the State's hands. The implication of this sad scenario is that it is up to the accused and not the State to decide on whether or not she can stand trial.

Meanwhile, she continues to be accused of having committed similar offences and continues to be granted bail for those offences. She has not at any point successfully challenged placement on remand on all the cases. In a bid to abide by the rule of law the prosecution applied for separation of trial.

The accused went to the high court and challenged this, and again trial was stopped at the instigation of the accused person. The actions of the accused are serious efforts to mock the justice system of Zimbabwe.

For some crazy reasons the High Court has always allowed the accused to show a finger to the noble judicial system. It is clear that the allegations against the three musketeers are not baseless but are premised on reasonable grounds.

The accused persons then decided to make crime their business. They went on committing various crimes which are related and they openly refuse to be tried raising numerous technicalities. At the same time, they go out and commit more offences.

The accused are clearly playing politics with the court and then accuse the courts for playing politics. The whole case is covered under a million blankets of deceit.

The evil being perpetrated on our justice system by these three is beyond imagination. In the case of AG –vSiwela, SC.20/17 Chidyausiku CJ The late Chief Justice Chidyausiku in the case of Siwela SC 20/17 ruled: "An analysis of the case law set above will show that the principles that govern admission to bail of an accused who is alleged to have a propensity to commit similar offences whilst on bail may be summarised as follows; 1) The credibility and substance of the evidence establishing the propensity to commit similar offences."

Mamombe and Chimbiri are simply making a mockery of our justice system for their handlers to vilify our nation.

"As long as the first accused continues playing the mental incapacity game on one hand and committing further crimes on the other and gets freed on bail, it will remain a hurdle for the proper administration of justice. This is a typical case in which the administration of justice in general and the courts in particular are being sold a dummy by the accused."

The accused are seriously playing to the political gallery.

It is a pity that judgments made by lower courts are hardly published for the public to see. Our journalists only publish the last words and hardly unpack the whole judgment.  

The learned magistrates in this case discharged her duties diligently and made all proud of the law. The law is not against anyone but the law is honestly wrapped in justice.

In the case of Mamombe and her gang one wonders why the High Court has been drawn in the politics of the day and shy away from the rules of granting bail. If there is one institution which will bring down the Government, it is the High Court.  

It was clearly shown in all High court cases that Appellant either has a propensity to commit another offence or is disrespectful of law and order.

In determining whether an applicant for bail, may, if released on bail commit further offences a court not being blessed with some prophetic foresight, can legitimately rely on the past alleged conduct of such an applicant.

The appellant's alleged conduct points to a possibility which cannot be said to be remote or fanciful that he is likely to continue to commit further crimes should he be released on bail. It was the decision of the court that to release an accused person under those circumstances would not be in the interest of justice as it is likely to seriously undermine the criminal justice system including the bail system itself.

The State's fears that the accused are likely to commit similar offences whilst on bail are real and cannot be cured even by the imposition of stringent bail conditions. The result is inevitable.

The entire justice system is put into disrepute, the courts resultantly become ineffective and the interests of justice may be permanently compromised. As indicated above, the onus after establishing the likelihood to commit further offences while on bail then shifts to an accused to demonstrate that such will not happen.

Unfortunately, this was not adequately covered. The decisions on bail, in criminal proceedings, represent an important stage in the prosecution process.

The results of these decisions can have far reaching consequences for victims of crime and the public in general. From the viewpoint of the defendant, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time. It is for these reasons that the Prosecution "Continually reviewing the remand status of defendants, and ensuring that custody time limit cases are dealt with in a short period."

The country at large has been confused as the Mamombe case has split the minds of many. If only and only the High Court could request the file of the accused from the magistrate court before it puts up a decision which contradicts the lower courts. Is it law or the High Court is manned by a outlaws.