Zim Independent Jan 07
By Chris Mhike
IN recent weeks, the judiciary has been subjected to intense verbal
and press-based attacks. That aggression is particularly lamentable as it
emanates from men who should know better.
The culprits, high-ranking government officials and other senior
authorities, ought to be familiar with the basics as well as the intricacies
of the substantive and procedural law relating to the treatment of accused
persons.
But, alas, distinguished officials have stampeded for space in the
news columns and for air-time on the small screen to lash out at the bench.
The furore follows a most commendable recent visit by Judge President
Rita Makarau to the remand section of Harare Central Prison.
It is common knowledge to all those who care that standards in
Zimbabwe's prisons have deteriorated to horrendous levels since
independence. The good judge must have seen for herself the gravity of the
situation during her visit.
Prisoners complain of hunger, forced to survive on one very poor meal
a day. Just a small portion of sadza and a few leaves of boiled cabbage,
without tomatoes nor cooking oil.
The horror starts in the holding cells at the police station where the
accused is subjected to sub-human treatment, forced to remove shoes and
under-clothes, including panties, even for menstruating women.
A tiny cell designed for four or less persons holding more than 30
people at a time, with lavatory facilities in the same room, and flushed
once a day from a point located outside the cell.
These are but a few glimpses, not an exhaustive description of the
conditions that suspects are subjected to at police stations, and at remand
prison. But suspects are not convicts. Should the accused's bail application
fail, the nightmare continues at remand prison.
Indeed, imprisonment at most prisons in Zimbabwe, including Harare
Central Prison's remand section, or incarceration at holding cells at police
stations, has become a form of torture.
The honourable judge discovered during the visit that certain inmates
had been locked up in remand prison for as long as nine years, without trial
or sentence. Remand prisoners are in the main persons who have not been
tried and therefore who are not, at that stage technically, and sometimes in
fact, guilty.
Even in the case of convicts, the diabolic treatment of citizens in
police cells and in prison is totally unacceptable in a democratic society.
Under these circumstances, therefore, one of the most sensible
outcomes of Justice Makarau's prison visit was the release of some remand
prisoners. The Herald reports, without giving a specific figure, that "more
than 100" were released.
They were released, not on judicial pardon (as is sometimes done by
the president through the presidential pardon system). They were admitted to
bail by competent judicial authorities, who presided over the prisoners'
applications. The judges considered the circumstances of the applicants, and
submissions by prosecutors (that is representatives of the state).
Also under consideration would have been the Judge President's
post-visit observations. Due legal processes were definitely followed.
Prison officials were part of the tour and pre-release deliberations.
Justice Makarau could not, as has been suggested in the press, issue a
blanket directive ordering the release of "more than 100 criminals". Release
becomes possible only after the sort of applications that were made at the
High Court.
There are many considerations that guide magistrates and judges as
they preside over bail applications. But the starting point in bail
proceedings, for most proficient judicial officers, is the constitution.
Defective as the Constitution of Zimbabwe is, at least it still
carries a Declaration of Rights. The declaration is not adequately
expansive, but it all the same provides a degree of valuable and fundamental
protection to citizens.
"No person shall be deprived of his personal liberty," says the law.
That provision is qualified in the same constitution when it is stated that
the law may condone deprivation of liberty "upon reasonable suspicion of his
having committed, or being about to commit, a criminal offence".
Related to the citizen's entitlement to liberty is the cardinal
principle known as the presumption of innocence. This is a most basic and
well-established tenet not just at home but the world over, stipulating that
every person shall be presumed innocent until proven guilty.
This tenet is critical in preserving the credibility of any legal
system, as well as the credibility of the prison system. That presumption
should be applied to any accused person, including ex-convicts because each
case has to be treated on its own merits.
In the case of preserving the credibility of the legal system, if
suspects are wrongfully incarcerated, no amount of money or other material
award would compensate their loss of liberty.
Very little, if anything, would restore the confidence of the victims,
or society at large, in the system where it is possible that an innocent
person could be locked up.
It is better for society to suffer the menace inflicted by a criminal
who was wrongfully released than for an innocent person to be wrongfully
imprisoned, especially under the conditions of local prisons or police
cells.
In civilised society, wrongful incarceration is a very expensive
mistake because the state would have to pay out huge amounts of money in
compensation. Not so in Zimbabwe.
But the motivation to spare citizens from wrongful arrest and
imprisonment should basically be to uphold the integrity of the legal system
more than the fear of financial losses.
In the case of the prison system, the integrity of the Zimbabwe
Prisons Service would be irredeemably undermined if citizens were to be
denied bail purely on the grounds that they are "notorious criminals", or
that they have been convicted before.
Imprisonment upon conviction is not just punitive. There should also
be a reformative objective. A sound prison system should be able to reform a
convict so that upon his or her release, they will be transformed, shying
away from crime.
Many convicts do reform. Often times, out of laziness and out of
prejudices, police officers target ex-convicts as the prime or first
suspects. It sometimes turns out that these easy targets are in fact
innocent.
The presumption of innocence and the right to personal liberty should
therefore be applied to every citizen, and extended even to persons with
poor criminal records.
In the ongoing assault on the judiciary, two of the most prominent
protagonists who seem to refuse to appreciate the significance of the right
to personal liberty, and the presumption of innocence, include Home Affairs
minister Kembo Mohadi and Police Commissioner Augustine Chihuri.
The Herald of December 4 2006 screamed in a front-page story that
Mohadi had hit out at the judiciary over the release of remand prisoners.
The accused were referred to as "criminals".
The minister is reported to have said: "I am disturbed by the vicious
cycle in which notorious armed robbers are arrested by police, placed on
remand and granted bail to rejoin the communities they terrorise."
He went on to accuse the judiciary of "complicity in the granting of
bail to such criminals".
Chihuri had been quoted a week earlier as having commented about the
"criminals". He took a "swipe at the judiciary" over the same issue.
In Zimbabwe, the rule in application in most cases is: "guilty until
proven innocent". The commissioner said: "I don't understand it anymore.
These are cross-border criminals who operate in syndicates and deserve
deterrent sentences."
There has been no scientific substantiation to the suggestions that
"more than 100 'criminals' were released", or that the recent prison visit
by the Judge President is directly linked to an upsurge in crime levels. It
is all speculation and suspicion.
A reporter wrote in the Herald of November 16 2006 that "in a
development that could be linked to the recent release of more than 100
suspected carjackers, robbers and burglars from Harare Central Prison . . .
the crime rate in the city of Harare has risen sharply".
The prevailing economic environment, high unemployment and poor
national and local governance all make a more probable explanation to the
higher crime levels.
When one considers the inefficiency of a system that allows people to
rot in prison for nine or more years, in light of the principles of liberty
to the citizen and the presumption of innocence, it becomes quite clear that
the latest attack on the judiciary is unjustified.
* Mhike is a lawyer practising in Harare.