In a bizarre case, a group of Zimbabwean political activists protesting under the Occupy Africa Unity Square campaign were arrested last week. The apparent charge is that they allegedly attempted to rob some people while they were on their protest at Africa Unity Square in central Harare. They appeared before a magistrate and were granted bail. However, they remain in remand prison – some at Harare Remand Prison and others at Chikurubi. One of them is Patson Dzamara, brother of the original Africa Unity Square campaigner, Itai Dzamara, who was abducted in March last year and remains unaccounted for.
The reason for the group’s continued detention is that although they were granted bail, the amounts they were asked to pay are beyond their means. Six have been asked to pay $500 each while the other four must pay $1000 each to be released. To an outsider, these amounts might seem small but consider the following statistics:
The average Zimbabwean worker earns a monthly wage of less than $500, but unemployment is generally rated above 80 percent. The Zimbabwean economy is in steep decline. The current cash shortages in the country mean banks have set daily maximum cash withdrawals. This has severely restricted access to cash. A major international bank recently has set a daily maximum withdrawal limit of $500. The central bank set the limit at $1000 per day but most banks cannot afford it because they simply don’t have the cash. The CEO of the said international bank reported that the average deposit by Zimbabwean individual depositors is only $374. People are spending hours and sometimes days, queuing as they try to withdraw their meagre savings. This is how desperate the situation is in Zimbabwe. These figures are important as they give context to the argument that given the circumstances, the bail amounts set by the court are not only excessive but grossly unreasonable and prohibitive.
Since the detained political activists cannot afford the bail amounts, they are languishing in jail, even though the magistrate ruled that they were eligible for bail. The fact that the magistrate admitted them to bail means he was satisfied that they met all the necessary conditions, such as that they will not be a threat to society and will not interfere with investigations, if any. The only reason they are still in detention is that they do not have the resources to pay the amount of bail set by the magistrate. In this note, I argue that this is not only patently unfair but it is also unconstitutional.
Zimbabwean law on bail is clear and well-settled as the following points demonstrate:
Excessive bail expressly prohibited
Section 120 of the Criminal Procedure and Evidence Act expressly prohibits excessive bail. It states as follows:
“120 Excessive bail not to be required
The amount of bail to be taken in any case shall be in the discretion of the judge or magistrate to whom the application to be admitted to bail is made:
Provided that no person shall be required to give excessive bail.”
The effect of this provision is clear and requires no further elaboration: excessive bail is prohibited. There is an argument to be made in the present case that the amounts of bail imposed by the magistrate are excessive, particularly taking into account the economic realities of the accused persons, most if not all of whom are likely to be unemployed and the general economic realities obtaining in the country, as described above.
There are number of legal authorities on the issue of excessive bail. These authorities demonstrate that while a magistrate has discretion over bail matters, a higher court may interfere with that discretion if it is not exercised reasonably or if the bail is excessive. In R v Vermeulen and another 1958 (2) SA 326 (T) the judges stated, “On the other hand, the magistrate is limited in the exercise of his discretion; he must not require any person to give excessive bail. This Court, in considering whether the magistrate has properly exercised his discretion, must consider, therefore, the question of whether the bail which the magistrate has fixed is excessive or not and if, in the opinion of this Court, the bail should be excessive then this Court would be obliged to overrule the magistrate”.
In an earlier case, Conradie v Rex, 1907 T.S. 455 the judge stated: “But I do not think it justifies him [magistrate] in fixing an amount of bail which is excessive, in all the circumstances of the case, and practically makes it prohibitive for the accused to obtain bail. The effect of fixing the amount the magistrate has fixed is practically to deprive the prisoner of the right to which the law says he is entitled, the right to be admitted to bail after he has been committed for trial.” (p. 460).
Of course in considering whether or not the amount of bail is excessive the court ought to consider if it will be a sufficient incentive for the accused to attend trial rather than absconding. If it’s too low the accused might consider it easier to forfeit the money and abscond. However, that should not justify setting a high amount which will deprive the accused of his right to liberty especially given the constitutionally protected right to be released on reasonable conditions and to a presumption of innocence (see below). The means of the accused is therefore a key factor to be considered, although it is by no means the sole one. This is what the court stated in R v Vermuelen, “The means of the accused is clearly not the sole test, but it is a factor which should be considered in relation to other matters”.
Presumption of innocence
Furthermore, the basic foundation of the law of bail is the presumption of innocence: that an accused person is presumed innocent until proven guilty. This right is enshrined in the Constitution under section 70(1)(a). This means the liberty of an accused person before trial is of paramount importance and must be treated as such by the state and judicial authorities. This position has supporting authority in a line of legal authorities from Zimbabwean courts. In the words of Chief Justice Gubbay in the case of Aitken & anor v Attorney General 1992 (1) ZLR 249 (SC) “The notion that an accused is presumed innocent until proven guilty is the cornerstone in an application for bail. Consequently, it is the tradition of our courts to lean in favour of and not against the liberty of the subject, and to grant bail where possible.” The presumption of innocence in the law of bail means the judicial authorities must endeavour to keep the accused from jail until proven guilty and must not therefore place barriers to their liberty. Excessive bail which an accused person cannot possibly afford would constitute such a barrier and would therefore be an affront to the constitutionally protected presumption of innocence.
Right to be released unconditionally or on reasonable conditions
The new Constitution contains elaborate provisions protecting the right to liberty (Section 49), the rights of arrested and detained persons (section 50) and the rights of accused persons (Section 70) all of which are designed to safeguard the rights of accused persons and prevent injustices. The most important of these provisions is section 50(1)(d) which provides that:
“Any person who is arrested … (d) must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention …”
This is the cornerstone of the right to bail under the new constitutional dispensation. It is clear from this provision that an arrested person must be released either unconditionally or on reasonable conditions unless there are compelling reasons for keep him or her in detention. The constitution has set the bar very high for the state: any continued detention must be based on “compelling reasons”. In this particular case, the magistrate has already disposed of this aspect because he granted them bail, which means he found no “compelling reasons” for them to be kept in detention.
However, while the magistrate has allowed them to be released, he has not done so “unconditionally”. He has set conditions and the key one that is preventing their release is the amount of bail that he set. This means the only remaining issue is whether the conditions of their release are “reasonable”. The main argument here is that the amounts of bail set by the magistrate are excessive and therefore not reasonable in the circumstances. This argument becomes more pertinent when read together with section 120 of the Criminal Procedure and Evidence Act, which prohibits excessive bail. The amounts are unreasonably high and beyond the means of the accused persons to the extent that the conditions of release are as good as denying them their right to be released on bail. As a matter of fact, the evidence shows that they cannot be released as granted by the magistrate and guaranteed by section 50(1)(d) of the Constitution simply because the amounts of bail are beyond their means. This is grossly unreasonable and unfair.
Don’t punish accused persons for their poverty
There is a compelling argument to be made that accused persons must not be punished for their poverty. Bail, by its very nature, is not a punitive measure and we have already noted that the right to be released unconditionally or on reasonable conditions pending trial is constitutionally provided for under section 50(1)(d). The fact that an accused person does not have the means to pay a high amount of bail set by the court should not be the only reason why he or she cannot enjoy their right to liberty. If the amount of bail is the only barrier that stands between a detained person and his right to liberty, there is something fundamentally wrong about it and it must be revised downwards. Other means to ensure an accused stands trial and does not abscond can be found.
It is my considered opinion that condemning an accused person who has been granted bail to remain in detention simply because of unaffordability is tantamount to violating his or her right to protection of the law which is guaranteed under section 56(1) of the Constitution which states: “All persons are equal before the law and have the right to equal protection and benefit of the law”. The law must protect the rich and poor alike. To a wealthy person, bail of $500 or $1000 might not be much, but to a poor person it’s a great deal of money. The irony is not lost that these accused persons are protesting against poverty and dire economic conditions. Section 56(3) of the Constitution prohibits discrimination on the grounds of “economic or social status” and I would argue that to the extent that the bail amounts are too high, it is tantamount to discriminating against the poor in criminal justice system.
Conclusion
There is obviously more to be said about this case from a political perspective and the effect of setting bail at such high levels, but I have deliberately skirted those issues to focus specifically on the legal arguments. To my mind, the amounts of bail are so excessive as to be unreasonable considering the circumstances of the accused persons and the general state of the economy. But more importantly, the Constitution guarantees the rights of the detained persons to be released at the very least on reasonable conditions. Zimbabwean law already prohibits excessive bail, which is tantamount to giving liberty with one hand but taking it away with another. There is a line of cases which allows higher courts to interfere with the discretion of the lower court where it is exercised unreasonably or the amount of bail is excessive. To my mind, this is a good case for the courts to set a precedent on the right to be released on bail on reasonable conditions.
waMagaisa
List of the detained activists
Patson Dzamara
Pride Mukono
Oliver Chikumba
Irvine Takavadii
Tatenda Mombeyarara
Makomborero Haruzivashe
Shadreck Dhliwayo
Brian Kasunzuma
Linda Masarira
Munezhu Mandova
Pamela Mawire
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