Online Reporter
Tichawana Nyahuma, [email protected]
WHEN adjudicating disputes in court, judges and magistrates are bound by procedural rules laid down in statute, although they retain a degree of discretion.
It is this discretion that enables them to effectively examine the issues before them prior to reaching a decision. In doing so, they may accept or reject any arguments presented by or against either party to the dispute.
This discussion seeks to examine the appropriateness of judicial discretion, particularly in criminal proceedings relating to bail. But I digress.
Before the current Zimbabwean Constitution came into effect in 2013, an accused person appearing in court for the first time was required to apply for bail if they wished to await trial outside of custody.
This placed the burden on the accused to demonstrate that they were a suitable candidate for bail — a system that had long been entrenched in Zimbabwe’s criminal procedure.
However, the 2013 Constitution reversed this position. Under Section 50, bail is now a constitutional right. A person charged with an offence and appearing in court for the first time no longer needs to prove their suitability for bail.
Instead, it is the prosecution that must demonstrate why the accused should not be released. Section 50 stipulates that every accused person is entitled to be released on bail unless there are compelling reasons justifying continued detention.
Accordingly, it is the prosecution that must speak first, placing on record the facts that show the accused is not a suitable candidate for bail — typically citing risks such as absconding or interfering with witnesses. Under the Constitution, there is no longer a requirement for a formal bail application at this initial stage. Once the accused enters the dock, they are presumed to be released unless compelling reasons are presented.
Section 50(1)(d) of the Constitution states: “Any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or a trial unless there are compelling reasons justifying their continued detention.”
It is therefore argued that the notion of “applying for bail” no longer applies in this context. Although Section 115C of the Criminal Procedure and Evidence Act provides for bail applications, when read alongside Section 50 of the Constitution, it becomes apparent that no formal application is required when an accused first appears in court.
The more appropriate term in such circumstances would be “bail inquiry”. Bail applications by accused persons are now reserved for the High Court, particularly in cases involving third schedule offences such as murder, attempted murder, treason and motor vehicle theft.
Yet, one still finds police statements in dockets declaring “bail is opposed”. But how can one oppose an application that has not been made?
Under both the old and new bail procedures in the High Court and Magistrates’ Court, the prosecution has always had the discretion to consent to or oppose bail. Under the previous regime, the prosecution would respond to a bail application by either consenting or filing opposing papers. Under the current system in the Magistrates’ Court, although no formal bail application is envisaged — at least in the writer’s view — the prosecution is still required to indicate its position on the accused’s release.
If the prosecution believes there are compelling reasons for continued detention, it must present those facts to the court, prompting a debate with the defence before a decision is made. If the prosecution consents to bail, the matter does not end there.
In practice, the presiding judge or magistrate will not simply accept the prosecution’s consent. Section 117(5) of the Criminal Procedure and Evidence Act empowers the court to probe whether such consent is properly made.
This approach presents a problem, which is the focus of this discussion.
In all criminal proceedings in Zimbabwe, the prosecution — also referred to as the State — is the master of the case.
The Latin term dominus litis applies, meaning the prosecution has the right to conduct its case as it sees fit, within the bounds of the law. It is, after all, the State’s case.
The right to determine how the case proceeds lies solely with the prosecution.
It is therefore argued that a magistrate or judge should not have the authority to question the State’s decision to consent to bail. Once the prosecution consents to the accused’s release that should be the end of the matter. The presiding officer may feel disappointed, but they should not be permitted to probe further.
Doing so amounts to descending into the arena — an inappropriate role for the judiciary. It risks the judge or magistrate imposing themselves on the prosecution, thereby tilting the scales of justice against the accused.
The Supreme Court, per the learned Justice Mathonsi in Oscar Zenda v The State HB101/17, expressed itself didactically on the issue under discussion:
“Understanding where the onus lies will assist the lower court to appreciate the folly of appearing to descend onto the arena and, in the process, misdirecting itself as the court a quo did in the present case. I say this because the prosecution came to court wielding a consent to bail and did not even begin to discharge the onus of showing the existence of compelling reasons for the denial of bail.
“Whichever way one looks at it, bail could not be denied where the prosecution did not discharge the onus.
Therefore, in rejecting the consent of the prosecution and inventing reasons for denying bail, which were not placed before him, the magistrate was usurping the duty of the prosecution, parading on borrowed robes and deciding the matter on facts, which were not before him.” So much for bail applications. Let us now turn to an actual trial.
As previously indicated, in a criminal case, the State is the dominus litis. The law takes this right seriously. Section 8(b) of the Criminal Procedure and Evidence Act grants the prosecution the authority to halt proceedings at any time before conviction, and the presiding magistrate or judge is obliged to acquit the accused immediately.
Now, imagine a scenario in which the State had consented to bail when the accused was first brought to court, but the accused remained in custody during the trial because the bail magistrate or judge had taken the view that “the consent was not well made”, thereby denying bail. Then, during the course of the trial, the State withdraws the charges.
Can the magistrate or judge then take the view that “the withdrawal is not well made”?
They cannot. Once the words denoting the withdrawal of the charge are uttered, the State has, in effect, terminated its own case. Despite the learned judge’s earlier exhortations, it is disappointing to note that the practice of denying bail to accused persons in circumstances where the State has consented remains prevalent in the magistrates’ courts.
Ironically, such judicial intervention is not permitted during an actual trial. Which, then, is more serious — a mere bail process or the trial itself?
l Tichawana Nyahuma is a lawyer. The views expressed in this article are his own, and are not to be taken as legal advice of any sort
