By Sij Ncube
HARARE, September 24,2015 – THE striking down of Section 121 (3) of the Criminal Procedure and Evidence Act (CPEA) as being null and void in that it is ultra vires the provisions of the Constitution of Zimbabwe is historic but government should move with speed to align statutes with the new supreme law of the land, critics say.
The Constitutional Court on Wednesday removed CPEA from the country’s statutes a development opposition parties and analysts claim effectively puts to end the fragrant abuse by the State in revoking bail of accused persons initially granted bail by magistrates.
The ruling came after Fanuel Kamurendo petitioned the Constitutional Court in 2014 after prosecutors invoked Section 121 of the CPEA to veto his bail, in a matter where prosecutors alleged that he damaged Zanu(PF) campaign posters.
Zanu (PF) critics Thursday roundly welcomed the ruling but now want President Robert Mugabe’s administration to fast-track the re-alignment of 200 laws with the constitution.
Obert Gutu, the MDC-T spokesman, said several MDC activists were victims of this draconian law in that the Public Prosecutor, particularly in politically sensitive cases, would simply invoke this provision in order to make sure that accused MDC activists will be remanded in custody for a further seven (7) days regardless of the fact that the magistrates’ court would have granted them bail pending trial.
“Public prosecutors would simply make a verbal submission, in terms of the struck off section 121 (3) of the Criminal Procedure and Evidence Act and advise the court that they intended to lodge an appeal against a decision to grant bail to an accused person.
“In that scenario, the accused person, even if he/she would have been granted bail, would then be remanded in custody for a further seven (7) days to allow the State to note an appeal against the decision to grant bail. More often than not, however, the State would not even proceed to note the said appeal but the net effect of this notorious practice was that accused persons would have stayed in remand prison for a further seven (7) days notwithstanding the fact that they would have been granted bail,” explained Gutu, adding that his party “express its deep pleasure” and joy at this ground – breaking ruling by the Constitutional Court of Zimbabwe.
Gutu added that his party now looks forward to a speedy harmonisation process to be conducted to ensure that the more than 400 pieces of legislation that are yet to be harmonised with the Constitution of Zimbabwe are harmonised as a matter of extreme urgency.
Okay Machisa, the director of Zimbabwe Human Rights Association (ZimRights), said it is commendable that Chief Justice Godfrey Chidyausiku together with eight other Judges of the Constitutional Court declared the controversial provision unconstitutional, saying the ruling widened the horizons of justice.
“ZimRights will continue calling for the scrapping of other equally heinous laws such as the Public Order and Security Act (POSA), which infringes on citizens’ fundamental rights, and alignment of all human rights-infringing law line with the new Constitution,” said Machisa.
Maxwell Saungweme, an international development analyst, chipped saying the annulment of the statute was long overdue.
“It’s a slap in the face for Tomana and his team who have often abused that provision to fix human rights defenders and opposition party members by seeking to detain them for unjustifiably long periods of time,” said Saungweme.
“But progressives should not read too much into this as the state and police have other extra legal means they use to detain activists for longer periods such as arresting people on Fridays or on the eve of public holidays in order to detain people longer. They can also still use enforced disappearances. It’s more than six months now and we have not located (Itai) Dzamara.”