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Fidelis Munyoro
Chief Court Reporter
The High Court has refused to reverse its decision to grant bail to suspected robber gang leader Musa Taj-Abdul and two co-accused, saying it has no legal power to do that and being very critical of Prosecutor-General Mr Kumbirai Hodzi for following the wrong legal path.
Abdul and Godfrey Mupamhanga were released on $5 000 bail apiece, while Rudolph Kanhanga was granted $2 000 bail last December.
They have since been re-arrested on further robbery charges and are now in custody on new charges, but Mr Hodzi wanted the original bail decision revoked on the grounds it was based on an incorrect, and possibly corrupt, concession by the prosecutor assigned to the hearing and was against public interest.
But on Wednesday, Justice Tawanda Chitapi dismissed Mr Hodzi’s application and expressed his disquiet over the manner in which the matter was handled by the PG’s office and its inability to appreciate that its dissatisfaction with the judgment of Justice Benjamin Chikowero could only be corrected on appeal, and not via the cited section of the law.
Mr Hodzi should have appealed to the Supreme Court if he was unhappy with the High Court ruling.
In his application, Mr Hodzi argued that the State was dissatisfied with the suspected robbers’ admission to bail, which had raised public outcry.
Justice Chitapi found that Mr Hodzi was motivated to act by public outcry.
It was wrong for Mr Hodzi to pander to public opinion at the expense of application of law, with the judge saying that the public expected that the rule of law should be followed by the courts.
“A good judgment is not necessarily one which the public must accept,” said Justice Chitapi.
“A good judgment is one which is procedurally and substantively correct. Courts do not determine matters or make decisions based on public opinion, but they should make decisions based on the Constitution and the law.”
Although the public interest should be jealously guarded by the courts, Justice Chitapi said courts remained an institution for interpreting and applying the law.
“They are not institutions for expressing public opinions because public opinion is not always correct nor in sync with the law applicable to a particular circumstance.”
In bringing his application, Justice Chitapi said, Mr Hodzi was required to be guided not by public opinion, but by the provisions of the law and what he was supposed to allege and prove as a fact.
“It is wrong and unprocedural for the applicant (Mr Hodzi) to not only express his dissatisfaction, but to apply before the same court which granted bail to determine the applicant’s dissatisfaction with a judgment delivered by that same court under the guise of invoking provisions of section 126(1) of the Criminal Procedure and Evidence Act,” ruled Justice Chitapi.
In his application, Mr Hodzi also sought to suggest that the concession for the court to allow bail made by prosecutor Tapiwa Kasema was corruptly made, but the judge noted that Mr Hodzi conceded that he was relying upon a suspicion, which is not a fact.
Kasema was arrested over the manner he allegedly consented to bail and is still in custody pending trial.
Justice Chitapi was careful not to make any findings or comments which could impact on the process of the criminal investigation in Kasema and probably his trial.
But he noted that Kasema had clearly stated that bail could be granted if his concession found favour with the court.
That, said Justice Chitapi, meant he left it to the court to make the final decision rather than to rubber stamp the consent made by the prosecutor.
Justice Chitapi said since Mr Hodzi was dissatisfied with the court’s order, the remedy was to appeal, but so far he had not done so.
He stressed that the rule of law required both procedural and substantive fairness to be observed, so the judgment by Justice Chikowero remained extant unless set aside by a judge of the Supreme Court.
Justice Chitapi also advised Mr Hodzi to familiarise his office with important judgments of the High Court and Supreme Court on key operational area of law like bail, generally.
He said if Mr Hodzi had applied himself to certain case laws he might have not made the unmeritorious application.
The trio’s release caused a public outcry after it appeared that Kasema erred in his consent.
According to Mr Hodzi, Kasema failed to consider important information that the accused persons had residence outside the country where they could easily escape to.
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