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Court Watch 9/2019 The Right to Bail 31 July 2019


[31st July 2019]
The Right to Bail

The Minister of Environment, Tourism and Hospitality Industry, Hon Prisca
Mupfumira, has been arrested on serious charges involving corruption and
abuse of office. When she appeared in court after being arrested her lawyer
applied for bail but the Prosecutor-General issued a certificate forbidding the
grant of bail for 21 days, so the magistrate accordingly refused it and remanded
her in custody for 21 days.
In this Court Watch we shall not comment on whether Hon Mupfumira is guilty
of the crimes alleged against her ‒ that will be for a court to decide in due
course. Nor shall we go into the question whether she should be released on
bail – that should be a consideration for a court.
What this bulletin will do is to question the constitutionality of a law which gives
the Prosecutor-General power to forbid the grant of bail to accused persons.
First though we should explain briefly what it means to be released on bail
pending trial.
What is bail pending trial?
Anyone who is arrested must be brought before a court within 48 hours, but
their trial can seldom take place so soon, so they have to be remanded ‒ that
is to say, ordered to come back to court at a later date. The court has to decide
whether in the interim the person must be kept in custody or whether they can
be released on bail, i.e. set free subject to conditions. These conditions usually
require the payment of a sum of money which will be forfeited if the person fails
to obey the order to come back to court.
The Constitutional Right to Bail
The granting of bail is a very important part of our criminal procedure because
it allows people who have been arrested to remain at liberty while waiting for
their trials to begin. It must be remembered that these people are presumed
to be innocent until they have been found guilty by a court, and until then they
should not suffer the indignity and hardship of detention in prison unless there
are compelling reasons justifying their detention. So important is the right to
liberty that section 50(1)(d) the Constitution enshrines the right of arrested
persons to bail in those very words:
“Any person who is arrested—
Court Watch 9/2019 The Right to Bail 31 July 2019

(d) must be released unconditionally or on reasonable conditions, pending

a charge or trial, unless there are compelling reasons justifying their
continued detention”.
Section 32(3b) of the Criminal Procedure and Evidence Act
In the light of section 50(1)(d) of the Constitution, how could Hon Mupfumira be
denied bail just at the order of the Prosecutor-General? The answer lies in
section 32(3b) of the Criminal Procedure and Evidence Act [which we shall call
the CP&E Act].
In summary section 32(3b) states that where a person is brought before a judge
or magistrate for remand after being arrested on reasonable suspicion of
having committed a serious economic crime listed in the Ninth Schedule to the
CP&E Act [the crimes for which Hon Mupfumira was arrested are in the list]
and the Prosecutor-General issues a certificate stating:
 that the crime involves significant prejudice to the national interest,
 that it is necessary to detain the person for up to 21 days in order to
investigate the crime properly, and
 that the police officer who arrested the person was of or above the rank
of assistant inspector,
Then, if the judge or magistrate is satisfied there is a reasonable suspicion that
the person committed the offence, the judge or magistrate must order the
person’s detention for 21 days or for any shorter period specified by the
Is Section 32(3b) Constitutional?
Section 50(1)(d) of the Constitution says that arrested people must be released
unless there are compelling reasons justifying their continued detention. The
effect of section 32(3b) of the CP&E Act, in contrast, is that arrested people
must be detained if the Prosecutor-General issues a certificate under the
section. Put like that the inconsistency between section 32(3b) and the
Constitution is obvious.
If it is necessary to give further reasons why section 32(3b) is unconstitutional,
here they are:
 In several cases judges of the High Court have said that the Constitution
places an obligation on the prosecution to establish compelling reasons
why an accused person should be denied bail. What are compelling
reasons? Over many years courts have held that legitimate grounds for
refusing bail are:
o if the accused person is likely to abscond, or
Court Watch 9/2019 The Right to Bail 31 July 2019

o interfere with witnesses or otherwise obstruct police investigations,

o if they are likely to commit further crimes.
Any one of these grounds, if clearly established by the prosecution, could
constitute a compelling reason for refusing bail.
 Under section 32(3b) of the CP&E Act, on the other hand, the Prosecutor-
General need simply state that the crime with which the accused person
is charged is a serious one involving significant prejudice to the national
interest. He does not have to establish, or even allege, that the accused
will abscond, or interfere with witnesses, or commit further crimes. The
mere fact that a person is charged with a serious crime does not
necessarily establish any of those factors and does not necessarily
constitute a “compelling reason” for denying them bail.
 Section 50(1)(d) of the Constitution permits bail to be refused if “there are
compelling reasons” for the refusal; the existence of those reasons must
be objectively established to the satisfaction of the court. Under section
32(3b), in contrast, all the Prosecutor-General need do is allege that the
accused person’s crimes involve significant national prejudice; he does
not have to prove or establish the prejudice.
 When presented with a certificate under section 32(3b) containing the
necessary allegations, a court must refuse to grant the accused person
bail. It has no discretion in the matter. The Prosecutor-General,
therefore, has deprived the court of its essential judicial function vested
in courts by section 162 of the Constitution.
Clearly section 32(3b) of the CP&E Act is inconsistent with section 50(1)(d) of
the Constitution and is therefore void.
Laws which are inconsistent with the Constitution are void (i.e. invalid) by virtue
of section 2 of the Constitution, and they are void even if the Constitutional
Court has not declared them to be such ‒ this point was made by the Court in
Veritas’ child marriage case [Mudzuru & Another v Minister of Justice & Others
CCZ 12/2015 ‒ Link]
This conclusion will not be of much comfort or use to Hon Mupfumira. Although
magistrates have power under sections 85 and 175 of the Constitution to
declare laws to be unconstitutional, they would be most reluctant to use that
power when it came to declaring an Act of Parliament to be void.
Instead, Hon Mupfumira’s lawyers will have to apply to the High Court or even
the Constitutional Court for the necessary order, and it is most unlikely that the
Court Watch 9/2019 The Right to Bail 31 July 2019

court will give judgment in their application before her 21-day detention comes
to an end.
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