adminRay Bande Senior Reporter
THE State still has the leeway to invoke Section 121, but can only do so after approval from the Chief Public Prosecutor or the Prosecutor General, The Manica Post has learnt.
Section 121, which is used to suspend a bail order issued by a magistrate for seven days to allow the State time to contest the decision, was recently declared unconstitutional by a full Constitutional Court bench.
Although the Constitutional Court declared it unconstitutional, Section 121 is yet to be struck off the Criminal Procedure and Evidence Act.
In an interview on the sidelines of a Public Prosecutors Train the Trainers workshop held a Mutare hotel last week, Prosecutor General Johannes Tomana said the State could now only invoke Section 121 after getting approval from the Chief Public Prosecutor or the Prosecutor General himself.
“It is not a secret that Section 121 has been widely debated and the debate rages on. It is an important tool that we used to employ when we are sufficiently convinced that releasing the accused persons might prejudice the whole trial.
“However, it has been misunderstood and many think it was being used for political reasons. Whenever the section is now being invoked it will be done with the endorsement of the Chief Public Prosecutor or the Prosecutor General so that we take collective responsibility of the decision. Therefore, it would be an act of misconduct to evoke the section without consultations with the Chief Public Prosecutor or the Prosecutor General,” said PG Tomana.
The section gives the State powers when a suspect is granted bail to notify the court of its intention to challenge the decision.
By operation of law, the suspect remains in custody pending the hearing of the appeal.
The Constitutional Court ruling came after four MDC suspects, accused of public violence, malicious damage to property and disorderly conduct, approached the highest court in the land, arguing that the section was constitutionally impermissible in that it allowed prosecutors to arbitrarily deny accused persons granted bail by a magistrate their right to liberty.
Fanuel Kamurendo, Shelton Masamba, Wilbert Ndiweni, Tendai Kamurendo and Elizabeth Dube, through their lawyer Thabani Mpofu, who was instructed by Kudzayi Kadzere from Kadzere, Hungwe & Mandevere Legal Practitioners, successfully argued to have the provision declared void.
Following the hearing of submissions, Chief Justice Godfrey Chidyausiku, leading the full Constitutional Court bench of nine judges, ruled that the section was indeed unconstitutional.
“The application in this matter succeeds,” he said.
“It is declared that Section 121 (3) of the Criminal Procedure and Evidence Act Chapter 9:07 is unconstitutional in that it’s ultra vires Section 13 (1) and Section 18 (1) of the former Constitution of Zimbabwe.”
Online Reporter