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Updated:ConCourt strikes off ’sadistic’ law

Updated:ConCourt strikes off ’sadistic’ law

September 24, 2015 in CourtsNews

THE Constitutional Court (ConCourt) yesterday made a landmark ruling by striking down Section 121 (3) of the Criminal Procedure and Evidence Act (CPA), which empowered the State to send to jail suspects who would have been granted bail.


The ruling effectively bars Prosecutor-General (PG), Johannes Tomana’s Office, from revoking bail against suspected criminals.

Chief Justice Godfrey Chidyausiku said remand prison was not a five-star hotel and the State should not take pleasure in keeping suspects in custody.

“On what legal basis is a person denied his liberty for seven days? Prison is not a five-star hotel. Surely your sense of justice should make you think it’s untenable,” he said.

Section 121 of the CPA empowered the PG’s Office to revoke bail granted by magistrates in matters where the State felt the suspects, mostly opposition politicians and journalists, would not be suitable candidates for bail.

Suspects would then be remanded in custody for a further seven days to enable the PG’s Office to appeal, at the High Court, against the magistrate’s ruling.

The ruling followed an application by political activists Fanuel Kamwendo and four others, who were detained for seven days, despite having been granted bail by a magistrate.

“The application in this matter succeeds. It is declared that Section 121 (3) of the Criminal Procedure and Evidence Act Chapter 9:07 is unconstitutional in that it is ultra vires Section 13 (1) and Section 18 (1) of the former Constitution of Zimbabwe,” Chidyausiku ruled.

Advocate Thabani Mpofu, who represented Kamwendo, had argued that any legal provision that had a possibility of being abused should be struck down as unconstitutional.

Although PG’s Office representative Edmore Makoto tried to convince the court not to outlaw the provision, Justice Chidyausiku was not amused.

“The facts of the matter prove this and you did not even appeal. You derive pleasure in keeping the person in custody for seven more days. It is more sadistic than legal,” Justice Chidyausiku said.

Deputy Chief Justice Luke Malaba added: “To save your breath, once you admit that prosecutors abused it for political reasons, then that is the end of the matter. Once that possibility exists, then it’s inconsistent with the Constitution.”

Zimbabwe Lawyers for Human Rights director Irene Petras said “The bane of many a human rights defender’s existence has been struck down by the full bench of the Constitutional Court of Zimbabwe. The years-long legal campaign has finally borne fruit.”

Kudzayi Kadzere, Mpofu’s instructing attorney said: “The decision is welcome in that now the State counsels can no longer act above the law and use power without being made to account. The court has reasserted that the right to liberty is fundamental more so were it is granted by a competent court.”

Opposition MDC-T leader Morgan Tsvangirai welcomed the ruling saying: “The MDC-T family is relieved. We had suffered the ignominy of that section. The section has been abused by Zanu PF and the State when dealing with the our members.”


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