Online Reporter
Trust Maanda
Legal Position
ANY person who is arrested or detained for the purpose of bringing him or her before a court; and who is not released must be brought before a court as soon as possible.
But in any event, they should be brought not later than 48 hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on weekend or public holiday.
The police do not have to wait for 48 hours to bring an arrested person to court. They should bring him as soon as possible from the time of the arrest or detention, but if they delay, the delay must not exceed 48 hours.
If that person is not brought to court within the 48-hour period, he or she must be released immediately unless their detention has earlier been extended by a competent court.
A court cannot entertain remand proceedings of a person illegally brought to court.
Once a person is brought before a court for initial remand, that person can challenge their placement on remand. Placement on remand means that the person is formally charged, and the court decides that on the basis of the allegations, that person can be formally put on the roll of court cases, and should await his or her trial, and the matter is given a date on which the trial will be held.
It is at that time that the court will be called upon to decide whether the person should be remanded in custody or out of custody.
Remanding in custody means the person will be in prison as he or she awaits trial.
Remanding out of custody means that the person gets bail so that they are tried while out of prison.
Before the person is remanded in or out of custody, the court must be satisfied that the allegations the person is facing provide a reasonable basis on which they could have been arrested, and on which the court can place the accused person on remand.
In other words, the court makes an objective assessment of the facts and decipher whether they constitute an offence on which the accused person has been brought to court.
If the facts are such that they do not disclose the existence of an offence for which the accused is brought before the court, the court will refuse to place the accused on reminds. That person will be released unconditionally.
In most cases, it is the legal practitioner of the accused person who makes an application for remand to be refused.
In doing so, the lawyer must point out that the allegations fall short of showing the existence of a crime. At that stage, the lawyer is not seeking to prove that the accused did not commit the offence or that the facts do not prove the accused guilty. It is simply to show that the facts as alleged, do not provide a reasonable basis for there to be a suspicion in the first place that a crime has been committed.
At that stage, if an accused person has immutable evidence to prove the shortcomings of the State case, he or she may provide that evidence.
For example, if the allegation is that the accused did a certain thing on a particular day, he or she may produce evidence that he or she was at another place at that time, away from the crime scene.
Attorney-General v Blumears 1991 (1) ZLR 118 (S) is a landmark Supreme Court ruling which is widely relied on in Zimbabwean jurisprudence for establishing the objective standard for the “reasonable suspicion” required to justify a lawful arrest and the deprivation of personal liberty.
In that case, the then Chief Justice Gubbay established that an arrest without a warrant is valid only if the arresting officer possesses sufficient information to warrant a prudent person in suspecting that the accused was legally responsible for the alleged offence.
The ruling highlights that the constitutional protection of personal liberty is balanced against the State’s necessity to investigate crimes, provided that the deprivation of liberty strictly adheres to requirements of the Constitution and the law.
The principles set in that case are heavily relied upon in subsequent court decisions to ensure that the State does not arbitrarily detain suspects without a sound factual foundation, and that the persons accused of crimes do not get placed on remand without a reasonable suspicion.
The existence of reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged and prosecuted is critical to the determination of the validity of the decisions to charge him or her with the criminal offence and institute criminal prosecution on the charge.
At initial remand, a court therefore has to evaluate if an objective basis exists for the accused to be placed on remand.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
